Federal Constitution

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

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

Alvin Tan and the Freedom of Expression

Alvin Tan is no stranger to controversy. He gained notoriety as a result of his blog which contained his sexual escapades with then partner, Vivian Lee. Once the spotlight was on Alvin and Vivian, there was no turning back.

They took it up a notch by posting a photograph on Facebook with the comment “Selamat Berbuka Puasa (dengan bak kut teh… wangi, enak, menyelerakan)” [Happy breaking fast with bak kut teh…fragrant, delicious, appetising]. Adding insult to injury, the picture contained a halal logo.

There was no surprise when their asinine action gained the ire of many Malaysians. It clearly poked fun at the religious beliefs of Muslims, and is completely unacceptable in a multi-religious society like Malaysia

Many, however, have stood up and defended Alvin’s actions on the basis that he is merely utilising his freedom of expression, as enshrined in Article 10 of the Federal Constitution of Malaysia. Prima facie, that seems to be the case

Article 19 of the Universal Declaration of Human Rights (of which Malaysia is a signatory) guarantees that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”

The International Covenant on Civil and Political Rights (ICCPR) elaborated on Article 19 of the UDHR by stipulating that the freedom of expression may be “subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”

The Parliament of Malaysia has passed certain laws (e.g. s.298, s.298A, and s.500 of the Penal Code, Defamation Act 1957) restricting the freedom of speech in Malaysia [as allowed in Article 10(2) and 10(4) of the Federal Constitution] for the purposes mentioned above

The freedom of speech does not translate into the right to say whatever you want. The freedom of speech/expression gives you the right to speak/express yourself responsibly. Failure to do so would then lead to criminal prosecution under the laws of the land

Fast forward slightly over a year later, it was reported that Alvin Tan is seeking political asylum in the United States and is already at the final stages

Political Asylum USA states that “a person can qualify for asylum, or political asylum, if he or she has a reasonable fear of future persecution, on account of race, religion, national origin, political opinion, or membership in a particular social group”

The website goes on to say that “a reasonable fear just means one need not prove conclusively that they will be persecuted in the future; only that they have a good reason to fear that it will happen.”

“Persecution means that the harm an asylum seeker is afraid of is severe enough to be considered a serious violation of one’s human rights”

The key element for a political asylum application is the reasonable fear of persecution on account of political opinion. Back to Alvin’s case, is he being persecuted because of his political beliefs? No.

Legal action is being taken against him because he violated his freedom of expression by unnecessarily messing with the delicate religious sensitivities in Malaysia.

The legal maxim “commodum ex
injuria sua nemo habere debet” is very much applicable to Alvin’s case. It basically means that a wrongdoer should not be enabled by law to take any advantage from his actions

The only reason Alvin is currently in the United States awaiting his final asylum hearing is because he took advantage of the kindness of the Malaysian courts. Alvin and Vivian were given back their passports for a limited time, in order that they may go to Singapore to film a documentary

Whilst in Singapore, Alvin acted mala fide by fleeing to the United States and applying for asylum there in order to escape the ramifications of his actions.  As a result of his somewhat brilliant manoeuvre, Alvin finds himself on Interpol’s wanted list

Furthermore, Alvin was recently quoted as saying, “If all else fails, I can easily publish more ‘seditious’ materials on my Facebook to taunt the authorities and get them to be hot on the pursuit of me again, therefore creating an even more well-founded fear of political persecution to bolster my asylum claim”

Days later he uploaded on Facebook a repulsive picture containing superimposed pig snouts on the faces of key leaders in Malaysia’s government, including the prime minister. Alvin is purposely pushing the buttons of the Malaysian government and using their response to support his claim for political asylum

The US court  hearing Alvin’s asylum application should definitely take into account the fact that he is a wrongdoer, and should therefore not be able to benefit from his actions.

It is trite law that ‘he who comes to equity must come with clean hands’ (D&C Builders v Rees) and that ‘he who seeks equity must do equity’ (Chappell v Times Newspaper). The legal maxims mentioned above further substantiates my point that Alvin should be sent back to Malaysia to face the music

If Alvin is granted political asylum for a non-political prosecution, this would set a dangerous precedent as it gives the impression that if a person has committed a crime, all he/she has to do is to run to another country and receive asylum there, thus freeing them from any consequences of their actions

If Alvin feels he is being unfairly charged, he can always countersue the Attorney General or the Government for malicious prosecution. After all, many academicians are of the opinion that the courts are the best protectors of citizens’ rights and fundamental liberties. Why not give this theory a shot?

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

A Facebook Like & The Freedom Of Opinion

An imperative piece of news which may have slipped the attention of many (likely due to the ongoing Menteri Besar saga in Selangor) is about a Form 5 boy in Penang being investigated under the 1948 Sedition Act for ‘liking’ a Facebook page titled, “I Love Israel”

I will attempt to look at this issue from an objective legal standpoint. If you are interested to further find out about the freedom of speech (more so its limitations) in Malaysia, you may do so by reading my previous article

Back the issue, I’m sure many of you are wondering whether liking a facebook page can amount to sedition. The use of social media has somewhat become a hot potato to the Government as information (be it true, or false) can be spread so easily

Just a little background, the Universal Declaration of Human Rights (in which Malaysia is a signatory) defined the freedom of expression as the right of every individual to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers

Article 10(1)(a) of the Federal Constitution guarantees every citizen the right to freedom of speech and exception. However, under clauses (2), and (4) of Article 10, Parliament may impose certain laws to limit the ambit of our right to say what we want and to spread our opinions (e.g. the Sedition Act 1948, Defamation Act 1957)

It was articulated that the Form 5 boy will be investigated under Section 4(1) of the Sedition Act. Section 4(1) makes it an offence if any person

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do any act which has or which would, if done have seditious tendency;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or

(d) imports any seditious publication

At this juncture, we would need to know what constitutes a “seditious tendency” before we can properly interpret the piece of legislation. Section 3(1) defines a “seditious tendency” as a tendency

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege, sovereignity or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution

It is most likely that the boy will be investigated under Section 4(1)(a) [done an act which has a seditious tendency] on the basis that it has the tendency to raise discontent or disaffection amongst the inhabitants of Malaysia [Section 3(1)(d)]

Let us take bring the McDonalds boycott into the picture and draw an analogy. If (for the sake of argument), the majority of Malaysians decide to take part in the boycott, every Malaysian who “liked” McDonald’s facebook page would be investigated for sedition on the basis that their “like” has the tendency to raise discontent or disaffection amongst the inhabitants of Malaysia.

Does anyone else see how ridiculous this sounds? The facts are insufficient but what we know is that the form 5 boy merely liked the “I Love Israel” facebook page (he claims it was accidental) and his teacher found out about it.

Just as the teacher has a right to be anti-Israel, her student has the right to be pro-Israel. It is evident that it is only a matter of opinion. Voltaire once said, “Think for yourself and let others enjoy the privilege of doing so too”

The million dollar question is whether we truly have the freedom to hold opinions, or whether we only have the freedom to hold opinions that are acceptable to those having auctoritas

It was further reported that the teacher shared it (the boy’s like of the FB page) on her Facebook page, criticised the student, and the boy’s actions attracted criticism and threats from other Facebook users. There were even calls to boycott the student, and one Facebook user commented the student should be burned

Now, wait a second. One is a mere “like” or “accidental like” (whichever you believe), while the other is an intentional share & expression of contempt/disapproval. The latter even resulted in calls to boycott the student & threats on the boy’s life. Any reasonable man can see which is worse

At least the police appear to be doing an impartial job as Seberang Prai Selatan district police chief Superintendent Shafien Mamat said the police will probe why he had liked the page as well as the threats made against him.

Margaret A. Edwards once said,  “Too many adults wish to ‘protect’ teenagers when they should be stimulating them to read of life as it is lived.” That is exactly what happened in this case. Ergo, the teacher should be castigated for her unbecoming actions

*This article can also be read at The Malaysian Insider, Malaysiakini and The Malay Mail Online

What DAP Truly Fights For

Considering the never ending remarks about DAP being anti-islam and anti-malays, I decided to assess whether it is true or not. My assessment is based on DAP’s objectives, policies, and declarations which can be found on its website

1. DAP’s objectives are as follows:

1. a Malaysian Malaysia concept by forging Malaysian race with universal moral values,
2. offering equal access and opportunity;
3. democratic governance and rule of law;
4. creating wealth and distributing wealth equitably; and
5. fighting against corruption

2. DAP’s policies relevant to the topic at hand are stated below

(i) “On nation building

Abolition of the division of “bumiputra” and “non-bumiputra” and the implementation of ethnic equality”

(ii) “On economic development

replacement of the ethnic quota system with a policy of “merits and needs”

(iii) “On Youth

abolition of ethnic quota system in education, the Universities and University Colleges Act and all other laws and regulations that retard the full development of the potential of Malaysia citizens.”

Their first and second objective can be contentious. I elaborated on the concept of Malaysian Malaysia in a much earlier post. Basically, Malaysian Malaysia is about equal rights between all citizens

One can allege that DAP is anti-malay because if the concept of Malaysian Malaysia is implemented, it would mean the removal of all special privileges given to bumiputeras (e.g. positions in public service, scholarships).

Furthermore,  does ‘equal access and opportunity’ mean the support for a non-malay Prime Minister in the future? If it does, those uncomfortable with the idea would definitely see this is an anti-malay propaganda

Chief Justice Brian in Brogden v Metropolitan Railway Co once said “for even the devil does not know what the thought of man is.” Likewise, no one can know DAP’s true intention for advocating the Malaysian Malaysia concept.

DAP’s third, fourth and fifth objective is laudable, as it is in line with the principle of fairness

DAP’s policy in point (i) was affirmed in the 1967 Setapak Declaration. Clearly DAP opposes the distinction between bumiputera and non-bumiputera.

Bumiputeras who are pleased with the status quo would use this as a supporting point that DAP is anti-malay. After all, if DAP was not anti-malay, why remove the distinction?

The real reason behind the opposition to the distinction is that DAP believes it is a hindrance to the process of nation-building (as per the Setapak Declaration 1967)

Well, it doesn’t seem anti-malay or anti-islam. However, DAP should elaborate on how the distinction affects the process of nation-building in order to convince its critics 

Regarding point (ii), meritocracy is generally a widely accepted system as it stands for giving a benefit/benefits to all those who deserve it.

No favouritism is involved when it comes to meritocracy. Point (ii) was articulated in the 1981 Petaling Declaration

Prima facie, point (ii) erodes the rights of the bumiputeras. However, DAP is fighting for the ethnic quota system to be replaced by a policy of “merit and needs.” This cant be seen as anti-malay because the change would also benefit malays who are in need

It is important to note that point (i), (ii), and (iii) of DAP’s policies all touch on Article 153 of the Federal Constitution which is about the special position of malays and the natives of Sabah & Sarawak.

It wouldn’t be wrong to say that some of the things DAP truly fights for is unconstitutional.

Based on its objectives, policies, and declarations, DAP doesn’t come across as anti-islam. There is nothing stated about removing Islam as the religion of the federation or anything to that extent

However, as to whether DAP is anti-malays, it boils down to a matter of perspective. If you are in one accord with the likes of Perkasa, and ISMA, you would likely view DAP as anti-malays

The Constitutionality Of Meritocracy

Meritocracy can be defined as “an elite group of people whose progress is based on ability and talent rather than on class privilege or wealth” as well as “leadership by able and talented persons.” It basically means giving something to those who deserve it.

Some people have suggested that Malaysia should be operating on the system of meritocracy as it ensures that only those who are capable & deserving receive the benefit, job, etc. I agree it is a good system, but I want to analyse it from a legal viewpoint

Is meritocracy unconstitutional? The answer is, it depends. Depends on what? It depends on what you want meritocracy to apply to.

Let’s say you suggest that meritocracy apply in terms of the awarding of scholarships and placements in universities. Article 153 talks about the reservation of quotas in respect of services, permits, etc for Malays and natives of any of the States of Sabah and Sarawak. Article 153(2) expressly mentions “scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government.” So yeah, if regarding ‘quota’s and scholarships’, meritocracy would be unconstitutional.

Let’s say you’re talking about meritocracy regarding positions in the public service. Article 153(2) covers “positions in the public service (other than the public service of the state).” Therefore, it would be unconstitutional to demand for meritocracy for that as well

How about meritocracy regarding the appointment of Cabinet Ministers and Deputy Ministers? Meritocracy would not be unconstitutional, but it would be a bit impractical. According to Article 43 and 43A, the YDP Agong appoints them (the ministers & deputy ministers) on the advice of the PM. However, the PM is only allowed to choose from the crop of members of either House of Parliament [Article 43(2)(b) and 43A(1)]

If we practiced meritocracy, none of the MPs may be qualified for the position of Minister of Defence as most (if not all), do not have any military background. The next best choice might not even be suitable for the job. Hence we would be back to square one (having incompetent ministers). The only solution would be for the political parties to field candidates from all walks of life. Then at least the talent pool is greater and more diverse

* This article can also be found at Malaysiakini and The Malaysian Insider

Is Malaysia An Islamic Country?

This is a point of contention every time the question of hudud pops up. Those all for hudud say, “Malaysia is an Islamic country, therefore we should have Islamic laws” while those against hudud say “Malaysia is a secular country and Islamic law has no place in it”

In actual fact, I think Malaysia is neither an Islamic country nor a secular one. We are an extremely unique country in the sense that we are UNDEFINED

“An Islamic state ( Arabic: ﺍﻟﺪﻭﻟﺔ ﺍﻹﺳﻼﻣﻴﺔ al-dawlah al-islamīyah ) is a type of government, in which the primary basis for government is Islamic religious law” as per Wikipedia. In Malaysia, our Federal Consitution is the basis for government, hence we do not fulfill the primary requirement of being an Islamic state

At this point, all the pro-secular country advocates are rejoicing. However, as per Wikipedia, “secular states do not have a state religion (established religion) or equivalent.” As we all know (or should know), Article 3 of the Federal Constitution states that Islam is the religion of the Federation. So Malaysia cant be a secular state by virtue of having an established religion

In Che Omar bin Che Soh v Public Prosector, Tun Haji Muhammad Salleh bin Abbas (former Lord President of the Federal Court of Malaysia) said that the laws of Malaysia are secular. Many have misconstrued his statement to mean that Malaysia is a secular country. After all, it is logical that a secular country would be governed by secular laws. However, as I rightly pointed out, we are not a secular state as we do not fulfill the requirements to be one

Tunku Abdul Rahman once said that “The country has a multi-racial population with various beliefs. Malaysia must continue as a secular State with Islam as the official religion”. Tun Hussien Onn reaffirmed it when he said,  “The nation can still be functional as a secular state with Islam as the official religion.” In 2001, then Prime Minister of Malaysia, Tun Dr Mahathir Mohamad openly declared that Malaysia is an Islamic country. Despite being the PM then, it was not in their power to declare Malaysia as a secular state/an Islamic state as even they (the PMs then) are subjected to the purview of the Federal Constitution.

No matter what individuals may say, Malaysia remains an ambiguous state until the glorious day when the Constitution is amended to expressly state whether Malaysia is an Islamic state or a secular state. In conclusion, Malaysia is NOT an Islamic state but neither is it a Secular state

* Read it also at The Malaysian Insider