On Why Bloggers Rule and What Rules the Bloggers (An Abstract)

By SONNY ZULHUDA
http://sonnyzulhuda.wordpress.com

The Internet is now a common platform of over one billion users in the world who exchange information, trade communications and transact commerce every now and then. This is the realization of what the website founders initially sought to achieve, i.e. a two-way communications in the cyberspace where writing information should be as simple as reading it.

At the heart of this phenomenon is now the website log – or blog. Blog is not merely a new technology, but it is now a trend. Individuals use blogs to express their feelings. Companies engage themselves in corporate blogging where they capture beneficial information to upgrade their services and achieve corporate objectives, and where marketers capture potential customers while they advertise for their products. And more pressing of all, blog is now an alternative to conventional media industry where individuals easily publish reports of incidents accompanied by their comments and views while getting rid of editorial and spatial barriers of conventional media. People have now often referred to online blogs to get information on ongoing incidents day to day. Given this situation, the luxury of information is now something of the past.

However, the bright innovation brought by blogs is not shaped only by its advantageous benefits but also by its contentious side. The social structure that has long defined the way we share information through conventional media is now shaking. As the editorial rules are gone in the online blogs, so do perhaps the rules of ethics and law. Except that rules of law, by nature, are equipped by an enforcing power through the instruments of the state. This is why despite the relaxation of other conventional rules of the game; governments are not easily loosening the rules when it comes to infringing rights of other people.

Hence the potential clash between bloggers and the law, especially when the legal rules restricting freedom of speech is implicated. In many jurisdictions, such freedom is subject to many sets of laws against defamation, false speech, hatred, religious beliefs and political stability. In Malaysia, for instance, blogs gained limelight when recently some prominent socio-political bloggers were sued for defamation. Such was among the first of its instance to be settled in court.

In the light of the above, this note sees the importance of undertaking three things: first, assessing the new phenomenon of online reporting by bloggers and their effect to the conventional media. Secondly, investigating legal rules that may restrict bloggers’ activities, citing the special cases of Malaysia. And finally, identifying certain strategic measures for online bloggers in order to minimize liability risks out of their publication online. The main message is to highlight the reality behind cyber world: just because they are online, bloggers are not exempted from certain traditional rules that have long shaped our life. Some adjustments are nevertheless necessary given the special circumstances for which the Internet and the blogs are invented.

Incidents involving bloggers in Malaysia as reported by media:

* On 11 January 2007, two political bloggers, Jeff Ooi and Ahiruddin Attan were sued by the New Straits Times Press (Malaysia) Bhd and its staff over alleged defamatory words posted in their blogs. The plaintiff succesfully obtained court injunction to remove blog postings (The Star, 19 Jan 2007).

* On 23 July 2007, a police report had been lodged against Raja Petra under Sedition Act 1948, the Penal Code and the Communications and Multimedia Act 1988 for blog entries that allegedly contain writing that insult the YDPA, degrade Islam and incite hatred and violence between local ethnic group (The Star 23 July 2007).

* March 2008, High Court in Alor Setar, Kedah ordered Raja Petra to pay RM2 million to UUM and its VC Tan Sri Dr. Nordin Kadi for libellious posting alleging the plaintiff of plagiarism (The Star 27 March 2008)

* Raja Petra was detained under ISA 1960 for his blog comments allegedly insulting Islam and the Prophet Muhammad. (The Star Online, 23 September 2008)

* Another blogger, Syed Azidi Syed Aziz was on 17th September 2008 arrested under the Sedition Act 1948 for publishing an image of the Malaysian flag upside down in his blog and for calling other bloggers to do the same as a sign of protest against the ruling government (The Star 19 Sept 2008).

* Umno Youth has lodged a report against Opposition leader Tian Chua over doctored photos in his blog involving the Deputy PM (The Star 11 July 2007). On a related incident, Nathaniel Tan, an aide to PKR adviser Anwar Ibrahim, was arrested in connection with a doctored picture of DPM posted on the Net (The star 14 July 2007).

* Chief Minister of Sarawak (Taib Mahmud) sued Utusan Malaysia, Malaysiakini and PKR officials over reports making allegations of corrupt practices against him (The Star 17 May 2007).

* In Sessions Court KL, a private school lab assistant was fined RM10,000 in default five months’ jail for posting offensive comments against the Sultan of Perak on the Internet in February 2009. Azrin Md Zain, 33, who is attached to Kota Damansara school, became the first person to be convicted in the summons case under the Multimedia and Communications Act 1998. (The Star, 14 March 2009). On related incidents (All below from the same source):

* In the same court above, self-employed Muslim Ahmad, 54, claimed trial to committing a similar offence in Setapak between Feb 7 and Feb 8.

* In Petaling Jaya, land surveyor Nor Hisham Osman, 36, pleaded not guilty to committing the same offence his residence in Seri Kembangan on Feb 11.

* In KOTA KINABALU, mobile phone shop owner Rutinin Suhaimin, 36, pleaded not guilty before Sessions Court judge Ummu Kalthom Abdul Samad who fixed May 25 and 26 for trial. Rutinin allegedly committed a similar offence at 6.33pm on Feb 13 at a shop in the interior Kundasang town at the foothills of Mount Kinabalu. He was released on a RM10,000 bail.

* In BUTTERWORTH, a couple was jointly charged at the Sessions Court with similar offences. Businessman Chan Hon Keong, 26, claimed trial to committing the offence at his house in Permatang Pauh on Feb 13. His wife Khoo Hui Shuang, 27, was not present when the charge was read as she was away in Sarawak. Chan was released on a RM6,000 bail. His case will be mentioned on April 15.

Law - Of justice and fairness

By BHAG SINGH

There is need for a more equitable approach when dealing with squatters.

The notion of law and justice as perceived by a broad section of the public to be fair and just, is not always one and the same thing. As the public looks to the courts for justice, there are occasions when the former feels that justice has not been done.

Apart from the concept that “justice must not only be done but be seen to be done,” the role of the courts is usually limited to deciding based on the law as it exists, rather than in a general sense of the word “justice”.

As recently highlighted in the media, a person or his predecessors may have been occupying a piece of land without having made any application for the land or on the basis of a Temporary Occupation Licence (TOL).

There are also cases where such a person may have applied for the land to be alienated to him but this may not have been approved or the application may have been ignored or not attended to.

However, the time may come when such a person is told to vacate the land. This demand may come from an individual or a corporate entity that has the land alienated to them and now wants to develop the land.

Legal rights

Such a person will naturally feel aggrieved that someone has swept away the land from beneath his feet. How can this be so? However, this is what the law seems to allow for all its perfections and imperfections.

By reason of the National Land Code, the land vests in the state. A person only acquires any rights if the land is alienated to him. Such alienation is by way of a grant in perpetuity which would be equivalent to a freehold or a lease for whatever period of time.

On the other hand, a TOL is only an equivalent of permission to stay on the land as long as such permission is not withdrawn. A TOL, whenever granted, expires at the end of each year.

It is our law that rights are acquired pursuant to alienation of the land. Thus Section 340 provides that the title or interest of any person or body registered as proprietor of any land, or in whose name any lease, charge or easement is registered, shall subject to specific provisions be indefeasible.

It is because it is the state of the law that a person who is a squatter or a TOL holder will have no rights as against a person who has been able to secure a grant of the land from the state. By the same token, such a person will have no rights to any compensation on legal grounds.

Decision of the courts

When such disputes go before the court, invariably the court will decide that the squatter or TOL holder has no right as against the new registered owner. In most cases, the registered owner is likely to be a commercial entity.

Unjust as this may appear to be, the reason is that the ordinary individual and the courts rely on different meanings. The Oxford Advanced Leaner’s Dictionary gives two meanings for the word justice: “the fair treatment of people” or “laws based on principles of justice”.

Though laws are based on the principles of ensuring fair treatment of people, economic conditions, social circumstances and other broader considerations of public interest, when enacted such laws can give rise to unfair consequences in specific situations.

There are occasions when a judge may feel that a decision is unfair in a given scenario. However, he has a duty to make the decision according to what has been provided for by the law.

That the court only applies the rules is a principle of universal application. In Lawyer’s Lawyer by William Harbaugh, the author describes a conversation between one Mr Hand and the well-known Justice Holmes in the following words:

“Once in the 1920s, Hand closed a talk with Holmes by saying, with mischievous intent: ‘Goodbye Mr Justice, now go and do justice!’ Holmes, who was leaving, turned around and said: ‘What’s that you said?’ Hand repeated the remark. Holmes retorted: ‘You know better than to say a thing like that. All we do is apply the rules of the game.’ ”

As said by the famous jurist and author Goodhart JL, there is something to be said of the view that justice should not only be seen to be done to the individual but also that it should be done to the community as a whole. It is not done when a guilty man is given an opportunity to continue his depredations owing to a technical slip.

Grievances

Our laws relating to land administration provide a useful system to ensure security of ownership and tenure. But then dishonest acts and intention by unscrupulous persons, whether within or outside the administrative machinery, have led to grievances and resentment.

When a person has occupied land and improved it in different ways and made it more valuable, it would on all accounts be unfair and unjust, outside the meaning of the National Land Code.

It is even more obnoxious in the context of a caring society, when those involved in the deprivation are persons who are working in collaboration with those entrusted to administer the land law.

Despite the indefeasibility principle, there is nothing to prevent those who administer the land before alienating it, to investigate whether there are occupants on the land, how long they have been there and how they have contributed to the enhancement in land value.

In appropriate cases, the land authority could give an opportunity to the occupiers to voice their plight and highlight their contribution, and then impose a condition for reasonable compensation to be paid within a certain period in respect of a fair sum.

The attitude of the authorities in most cases is to alienate the land by closing their eyes and then falling back on the provisions of the Code to justify their actions. Even if not deliberate, it is a gross neglect of their responsibility on the basis of good conscience.

However, as history shows, such fairness has seldom existed and good conscience rarely reflected and relied upon. It may be time for the government to legislate for such procedures to be incorporated to ensure a better level of fairness and justice to the ordinary individual.

- THE STAR

Law - Legal obligation

by BHAG SINGH

Do consider the risk of being saddled with obligations and responsibilities before you allow your name to be used in a transaction.

Relatives and friends can end up asking one another for a favour. Sometimes a favour may be sought by a mere acquaintance. The help sought can vary from case to case.

A friend may ask another to be a guarantor for his son’s scholarship. A relative may ask another for permission to use his name to buy a car on hire purchase. A parent may ask for a child’s name to get additional facilities.

Where a person accedes to such a request, he allows his name to be used for the purposes of the transaction.

In the case of a scholarship, he becomes a guarantor. Where a car is to be thus acquired, he becomes the hirer and where facilities are sought, he becomes the borrower.

In close relationships, it is difficult to refuse such requests for help. The person approached may agree to the request out of a sense of obligation. It becomes even more difficult when the other person is a parent or elder sibling.

If the scholarship holder finishes his studies and fulfils his obligations, the person for whom the car is secured promptly makes the instalment payments, or the facility obtained is maintained and serviced, there will be no cause for grievances.

Problems arise when there is a default by the party for whom the favour is done. In the case of a guarantee, when the scholarship holder does not complete his studies or having done so, refuses to honour his obligation to serve, the primary responsibility no doubt rests on him.

However, the donor of the scholarship would usually have contractually reserved the option to recover the amount due from the scholarship holder or guarantor. This being the case, it would not be open in the absence of express specific provision for the guarantor to limit his liability on a proportion basis.

In theory, a guarantor could enjoy some security. He could, after he has paid the amount, seek to be indemnified by the scholarship holder and in the absence of availability of such indemnity, seek contribution from the co-guarantors.

However, it could transpire that both the scholarship holder and the co-guarantor may not be in a position to indemnify or contribute as they do not have the financial means. In such an event, the right to indemnity may turn out to be shallow, if not non-existent.

The situation assumes a different complexity when a hire purchase transaction is entered into to help another acquire an item. Here the lender of the name is actually the principal in the transaction. He is the hirer and becomes directly liable to the party that provided the financing for the item, that is, the owner.

The fact that the hire purchase transaction is entered into for the benefit of a third party is irrelevant in the context of the dealings with the owner of the item in question.

If there is a default in payment of instalments which cannot be remedied, it becomes the hirer’s duty to make the car available to be repossessed. If the car is hidden away to prevent repossession, that itself would constitute an offence on his part.

On the other hand, if the car is repossessed and sold off, this may not be the end of the matter because the amount received may not be enough to settle the balance. The difference will become a debt owing from the hirer.

It is pointless for the hirer of the car to say that it was meant to be used by and paid for by the friend or relative in question, because this is an arrangement that does not concern the owner.

Where a person, in deference to the wishes of a family elder, allows his name to be used to obtain a financial facility, the fact remains that in so far as the transaction is concerned, he is the person who is entering into the contract.

There may in such cases be an element of “undue influence” under section 16(1) of the Contracts Act 1950. This section says that “A contract is said to be induced by undue influence where the relationship subsisting between the parties is such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.”

In this regard, a person is deemed to be in a position to dominate the will of another “where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other”.

However, despite the existence of such a situation, the fact remains that the person who enters into the transaction will be held liable according to its terms. Even if the third party knows about the undue influence, the courts are inclined to take the view that since the influence is coming from a party not privy to the contract, it is not relevant.

So what should a person do when approached to become a guarantor or to allow his name to be used as a party in a transaction? There are a few issues to consider here.

It is important to consider the person involved whom one has been asked to assist, the nature of the transaction as well as the circumstances that make necessary or require such involvement in the transaction.

Another factor to consider would be to know the actual liability in the event of the friend or relative defaulting. Such a person may have the capacity to meet any obligations arising.

However, the uncertainties of life and unforeseen events can change the scenario. Thus it is a matter for the individual involved to consider whether in a worst-case scenario he would be able to discharge the obligations that arise.

Once these aspects have been considered, the risks involved can be appreciated. It would then be open for him to decide.

No solution in sight

By ZAINAH ANWAR

A bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion.

The ongoing debate over the right of a convert to Islam to unilaterally convert his underage children underscores the importance of determining the public role of religion in a plural society like Malaysia.

The Cabinet recently made a courageous policy decision that when one party to a marriage converts to Islam, the minor children should be raised in the religion agreed upon by the parents at the time of marriage. This decisiveness will help to resolve an area of conflict over competing claims and interests that neither the individuals nor the courts have been able to resolve satisfactorily.

However, what was a bold attempt to resolve a protracted problem has yet again revealed the rifts among Malaysians in matters of religion. While the Cabinet decision was welcomed by non-Muslims, the Bar Council, the inter-faith Consultative Council (MCCBCHST), women’s and human rights groups and segments of the Muslim community, the advocates of Islamic state and syariah rule have opposed the decision.

Some of the Islamists felt that the issue was already decided by the December 2007 Federal Court decision, which ruled that only one parent’s consent was needed for the conversion of minor children. But in effect, this decision did not settle the matter as it did not address several questions of law.

The Court ignored Schedule 11 in the Consti­tution on interpretation which provides that “words in the singular include the plural, and words in the plural include the singular”. Thus the right of the “parent” to decide on the religion of children below 18 (Article 12 (4) ) should be read as the right of both parents.

Article 12 (4) must also be read with Article 8 (2), which prohibits discrimination on the basis of religion, race, descent, place of birth or gender. Read together with the Guardian­ship of Infants Act, which recognises that both parents have equal right of guardianship to their children, a persuasive argument can be made that the consent of both parents is needed to change the religion of the children.

The Federal Court judgment was criticised for its failure to read laws holistically and the confusion it caused over jurisdiction. Even though it ruled that civil marriages could be dissolved only by the High Court, even if one party had converted to Islam, it also held that converts could go to the Syariah Court for relief. But any judgment from the Syariah Court has no effect on the High Court.

These issues and other constitutional matters on jurisdiction and conflict of law between civil and syariah will now be heard in an appeal before the Federal Court.

Think of the children

Another earlier Court decision awarding custody to the Hindu mother, while recognising the right of the father to convert the children to Islam, also left an untenable situation in real life. How do you stop exposing the child to the practice and teachings of the religion of his custodian who is his daily caregiver and protector?

What if custody is with the convert Muslim parent: Is it realistic to expect the Muslim parent to ensure that the child is brought up in the religion at the time of marriage? Should the Court be making orders that cannot be implemented in practice?

Perhaps the more important question to answer is what is in the best interest of the child. If the court decides that custody must be with the mother, then it is only realistic that the child can be brought up in the religion of the mother. To decide that the child must be converted to Islam and brought up as a Muslim, no matter what, does not serve the best interest of the child, nor reflect Islamic juristic principles on conversion and profession of faith among minors.

As many Muslim scholars have asserted, it is not necessary to convert children to Islam as they bear no responsibility for their sins or rewards until they are of sound mind.

Also, the Administration of Islamic Law Act states that for a valid conversion to Islam, the person must utter in reasonably intelligible Arabic the two clauses of affirmation of faith, and must be aware that the two clauses mean “I bear witness that there is no God but Allah and I bear witness that the Prophet Muhammad s.a.w. is the Messenger of Allah”. These two clauses must be uttered on his or her own free will. This means that for children under 18, a parent can only give consent to the conversion, and not convert them on their behalf.

What is clear is that at all levels, be it Consti­tutional, Islamic juristic principles, and lived realities, the solution to the conundrum can be found. But politics, ideology, and confusion between personal faith and public policy got in the way.

When conflicts arising out of conversion, freedom of religion, moral policing, women’s rights, and human rights are viewed only through the religious prism and therefore must be decided according to syariah law, it makes the search for solutions even more complicated.

Far too often, the argument that syariah principles represent “the will and command of God” has instilled fear and silenced discussion and debate.

In Malaysia, this narrow ideological approach is now being supported by a new interpretative trend urging the Courts to read Article 3(1) of the Federal Constitution, which states that Islam is the religion of the Federation, to mean that all laws must conform to syariah principles.

Even though Article 3(4) states that nothing in Article 3(1) derogates from any other provision of the Constitution, arguments are now being made in court to give Article 3(1) an expanded meaning without considering other Constitutional provisions that limit syariah jurisdiction, and in particular Article 4(1) which recognises the Constitution as the supreme law of the land.

This view is also propagated in public forums and lectures led by Islamic state ideologues. There are even those who publicly say the Constitution only applies to non-Muslims, while Muslims of this land are governed by syariah law.

Law reform needed

The Cabinet has displayed the political will to find a solution to the endless contestations arising from conversions. Given the public outcry and heart-wrenching distress caused to parents and children, what is urgently needed now is immediate law reform to restore the law to the status quo before these confusing and conflicting judgments were made.

There must be clarity in law and interpretation that non-Muslims should not be subjected to syariah jurisdiction, a child’s religion can only be changed with the consent of both parents, and that all matters pertaining to a civil marriage must be resolved in the civil court under civil law, even if one party has converted to Islam.

In the long run, what is perhaps needed is the submission of a White Paper to Parlia­ment that clearly addresses all the problems, complexities and competing interests on matters involving religion. The Government can then present its long-term solutions for debate on the proper role of religion in public life and as a source of public law and policy, and the framework and principles to be used to address the areas of conflict.

The renowned Sudanese legal scholar, Abdullahi An-Na’im, advocates that the use of syariah rules and principles to make laws must pass the test of “civic reason” and be subject to safeguards within the framework of constitutionalism, human rights and citizenship.

Similar frameworks are also advocated by other Muslim scholars, groups working on women’s rights in Islam, and by the newly launched Musawah, the Global Movement for Equality and Justice in the Muslim Family.

What this means is that there is a place for religion in public law and policy. But this right can only be realised within the framework of constitutional and democratic governance at home and international law abroad.

The challenge, as posed by An-Na’im, is for the advocates of Islamic laws and policies to support their proposals in free and open public debate by reasons that are accessible and convincing to citizens, regardless of their religious or other beliefs.

And those who disagree must also enjoy the public space to present their counter proposals on an equal footing, whether their arguments are based on a different set of syariah principles or from other religious, Constitutional or human rights perspectives.

In Malaysia, the public space for debate on matters of religion is expanding. The search for just solutions can only take place if we as citizens protect this space and consider the possibilities of equality and justice from multiple perspectives – religious, international human rights, constitutional and fundamental rights guarantees, and our lived realities. The use of syariah arguments for public law and policy must be grounded in the realities of modern day life in a democratic constitutional state, and a world linked by international law.

Law - Many things to many people

By SHAD SALEEM FARUQI
Professor of Law at UiTM and Visiting Professor at USM

The doctrine of separation of powers has a mixed record, and a richness and a complexity that defies easy description.

The doctrine of separation of powers has been in the news repeatedly in the last few months.

Perak: In the Perak constitutional crisis it was alleged by opposition sympathisers that judicial review of the actions of the then Perak Speaker was a trespass by our judiciary into the privileges of the Perak Assembly.

The adverse judicial verdicts against the Perak Speaker were alleged to be a violation of Article 72 of the Federal Constitution which states that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

Case law from Malaysia, the UK, India and Australia does not present a consistent and coherent picture of how immune Assembly proceedings are from judicial scrutiny.

Generally, courts refuse to examine matters that are purely internal to an Assembly proceeding.

However, if constitutional issues are raised or personal liberty is deprived or there is gross abuse of democratic norms by Mr Speaker or by the House, courts have not abdicated their duty to interpret the Constitution.

In many cases in India, habeas corpus has been issued to order release of people wrongfully detained on the orders of the House.

Lower courts: About 10 days ago in the Dewan Rakyat, MP Nurul Izzah Anwar asked why magistrates and sessions courts came under the jurisdiction of the Attorney-General’s Chambers.

Minister in the Prime Minister’s Department Datuk Seri Nazri Abdul Aziz cleverly replied that they were actually placed under the Federal Court Chief Registrar’s office.

He adroitly avoided, and evaded, the central issue that in Malaysia lower court judges can be part of the AG’s Chambers one day and be transferred to the hallowed halls of the judiciary the next morning.

Federal Court rejection of doctrine: MP Karpal Singh wanted a government response to the Federal Court ruling in PP v Kok Wah Kuan (2008) that “the doctrine (of separation of powers) is not a provision of the Malaysian Constitution even though it influenced the framers of the Malaysian Constitution”.

Nazri affirmed that the doctrine of separation of powers that divides the institutions of government into three branches is effective in the country. He also said that separation of powers ensured that cases before the court were not intervened by any quarter.

Judge as executioner: The Chief Justice and the Bar Council President have questioned the plans of a Sessions Court judge to execute the punishment of caning he had earlier imposed on a young offender.

Indeed, the order of the Sessions Court President trespasses into the function of the executive and converts the judge into an adjudicator as well as an executioner.

All of the above four examples indicate different views of the doctrine of separation of powers.

Indeed this fundamental constitutional ideal has a richness and a complexity that defies easy description. There is no one concept; there are many conceptions.

In France, the doctrine is applied very differently from Malaysia. As part of a strict separation among the organs of the state, the judiciary is not allowed to interfere with the executive and legislative branches.

Disputes between the citizens and the state go to special administrative courts that apply a special body of administrative law. Any questions about the constitutionality of legislation are determined by a special committee of the French Parliament.

In the US, India and Malaysia, on the other hand, the effectiveness of judicial review of executive and legislative actions is the litmus test of the working of separation of powers.

Executive-legislative relationships: In the US, the President and his Cabinet are not, and cannot be, members of their legislature (the Congress). The President and his Cabinet are not answerable to Congress and cannot be dismissed on a vote of no confidence.

In Malaysia, the UK and India, on the other hand, the motive force of the Constitution is a conjunction between the “parliamentary executive” and Parliament.

The PM and his Cabinet are integral parts of the legislature; they are answerable, accountable and responsible to the lower House and can be voted out on a vote of no confidence.

If one were to examine the relationship between the executive and the legislature in Malaysia, there is neither separation nor a check and balance. The executive dominates Parliament politically and has also captured the legislative process.

Parliament legitimates; it does not legislate.

As in France, the Yang di-Pertuan Agong has an important and independent law making power of his own under Article 150 of the Constitution.

In addition, the executive makes a great deal of subsidiary legislation which in amount exceeds parliamentary legislation by about 15 times.

Clearly, the centre of gravity of the legislative process lies in Putrajaya not in Parliament.

Executive-judiciary relationship: In the relationship between the judiciary and the executive, the Constitution sought to ensure that the higher echelons of the judiciary are separate from, and independent of, the executive.

The Constitution provides for the existence of the superior courts, the judicial hierarchy, the jurisdiction and composition of the courts, constitutional procedures for appointment of superior court judges, protection for security of tenure, favourable terms of service, insulation from politics, judicial power to punish for contempt and judicial immunities.

The principle of constitutionality and the administrative law principles of ultra vires and principles of natural justice enable the courts, if they are minded to, to ensure that no matter how high and mighty the functionary of the state may be, the law is always above him.

The gilt-edged provisions of the law on judicial independence have, sadly, not worked well because of poor appointments, lack of integrity at the top at various periods in the past, factionalism within the judiciary and a general unwillingness on the part of many judges to uphold the check and balance provisions of the Constitution.

There are other problems as well. Many executive actions like preventive detention are expressed by the law to be non-reviewable in the courts. Most judges interpret these provisions literally even though legal luminaries around the world have suggested many ways to denude “ouster clauses” of their effect.

The 1988 amendment to Article 121(1) does indeed weaken the inherent powers of the courts to prevent transgressions of the law. The position of Subordinate Court judges as part of the Judicial and Legal Service is quite unsatisfactory.

The absolute powers of the Attorney-General over prosecutions, his right to pick and choose which law to apply, and his power to transfer cases laterally or horizontally have hitherto remained impervious to judicial review.

All in all, the doctrine of separation of powers has a mixed record. One’s view of its working depends partly on how one views its salient features.

Law - What makes Malaysia tick

By SHAD SALEEM FARUQI
Emeritus Professor at UiTM and Visiting Professor at USM

Instead of creating a melting pot, Malaysia painstakingly weaved a rich cultural mosaic, the various people like the colours of a rainbow – separate but not apart.

A high powered delegation from Afghanistan is visiting the UM’s International Institute of Public Policy and Management to study our parliamentary system and to get a background on what makes our country tick.

And tick it does! Even US President Barack Obama gave us a pat on the back for being an exemplar among Muslim nations.

I had the privilege of addressing the audience. This was no time for me to count our failings, which are many, but to single out those “best practices” and those unique features that have helped us to survive and thrive.

Some of these could provide pointers to countries like Fiji, Afghanistan and Iraq – which have similarly diverse and divided societies.

For example, the way Malaysian federalism concedes the special aspirations of Sabah and Sarawak could provide a paradigm for accommodation for the restive regions of Afghanistan and Iraq.

To the Afghani audience, I counted 10 sterling achievements of our socio-legal system.

First, is our peace and social harmony. We are not at war with any nation or with ourselves. There was one war with Indonesia in 1964; one major racial riot in 1969; and a communist insurgency up to the 80s. Today, no religious, racial or regional grouping is at arms against the Government.

Second is the wondrous durability of political cooperation among the country’s racial, religious and regional groups.

The political alliance, painstakingly forged by the forefathers in 1954, was built on an overwhelming spirit of accommodation, a moderateness of spirit, an absence of the kind of passions, zeal and ideological convictions that in other plural societies have left a heritage of bitterness and violence.

The Alliance/Barisan Nasional is perhaps the world’s longest surviving political alliance. It is a unique and unparalleled example of long-term power sharing among the multi-ethnic, majority-minority communities and between West Malaysia and Sabah and Sarawak.

In a country of dazzlingly diverse, rich and autonomous cultural worlds, each in its own orbit, the 14-party Barisan is the sun that keeps the various planets from colliding with each other.

The third sterling achievement is the country’s enduring and endearing inter-ethnic harmony that has few parallels in the world. The frequent sniping at each other notwithstanding, in general, Malaysians tolerate as well as celebrate each others’ religious and cultural festivals.

Instead of creating a melting pot, Malaysia painstakingly weaved a rich cultural mosaic. The plurality of lifestyles this engenders has given rise to an extraordinarily multi-faceted society. The various people of Malaysia are like the colours of a rainbow – separate but not apart.

For 52 years, Malaysia has provided the world with a rare example of how a fragmented multi-ethnic and multi-religious polity can be welded together in a common nationality.

Our fourth significant achievement is the eradication of hard core poverty and suffering.

Louis Armstrong in his immortal song reminded us how universal the desire is for a human being to want a place in the sun and to have a chance to give his kids a better life. The Government has vigorously facilitated this quest.

Through socio-economic measures such as free primary and secondary education, there has been tremendous upward social mobility among the masses.

Fifth, Malaysia has used its economy to preserve social peace. We adopted pragmatic, globalised economic policies long before globalisation. There is wide scope for economic initiative and enterprise.

A strong economy has acted as a glue to bind our people, first, by forging inter-ethnic economic partnerships and, second, by giving to every community a share and a stake in a delectable economic cake

There is a vibrant private sector, dominated by a dynamic and commercial-savvy Chinese community that has contributed immensely to Malaysia’s economic prosperity.

By utilising the economic genius of its enterprising minority communities, Malaysia has enjoyed a sustained economic prosperity that is matched by very few Asian and African societies.

An activist public sector helps the politically dominant but economically depressed Malay community to participate in more and more economic enterprises.

The sixth outstanding feature of Malaysia is the peaceful and cooperative manner in which social engineering is being accomplished.

Unlike some other societies with a similar problem of identification of race with economic function, the government in Malaysia did not, like in Uganda or Zimbabwe, expropriate the wealth of one community to bestow it on another.

Instead it embarked on a pragmatic expansion of opportunities to give to every community its share in the pie. The country’s efforts have reduced the tensions that flared in 1969 due to the economic gaps between the majority-minority communities.

A seventh characteristic feature of the Malaysian polity is the development of a culture that avoids open confrontation; that emphasises behind the scenes negotiations and compromises on a whole range of religious, ethnic, cultural, linguistic, economic and human rights issues.

Unlike other societies where social conflict is almost always played out in the streets, Malaysia imposes severe controls on mass protests. This has adverse human rights implications but has avoided the continuous cycle of political and religious violence that bedevils many democratic societies.

The eighth remarkable feature is that Malaysia as a Muslim country is an exemplar of a moderate, multi-cultural and tolerant society. Secularism and Islam co-exist in harmony and symbiosis.

The last two decades have seen the rise of political Islam and the increasingly divisive argument of adopting an Islamic state, but the Government has handled religious ideologues fairly successfully by adopting many Islamic measures but maintaining the broad secular, capitalistic, democratic and globalised features of Malaysia’s multi-ethnic and multi-religious society.

A ninth admirable feature is the emancipation of women. In the work place, in schools and in universities, women are easily outnumbering men.

Tenth, Malaysia has successfully kept the armed forces under civilian control. There has been no attempted coup d’etat and no “stern warnings” from military generals to the political executive.

Malaysia has kept the armed forces out of politics by creating a subtle check and balance between the armed force and the police force.

Another achievement is that the extra-constitutional military-industrial complex that, behind the scenes, dictates policy in many democratic countries, the US included, has not been able to displace civilian control over military and industrial decisions in Malaysia.

To the participants of the UM course I had to say that there is much in Malaysia’s struggles and successes that is worthy of emulation by friends and foes alike.

I hope that some lessons from Malaysia’s trials, tribulations and triumphs may allow the long-suffering but great people of Afghanistan to achieve peace and prosperity.

Law - To sue or not to sue

By BHAG SINGH

It is best to seek advice on whether a claim should be challenged before pursuing litigation.

When there is disagreement and the differences cannot be resolved amicably, one party is likely to threaten and possibly sue the other. Or the parties may even sue one another. At the end of the day, one party will succeed and the other will fail.

The party that fails will have to meet the successful party’s claims and pay costs as well as bear its own costs. The successful party will feel vindicated for pursuing the litigation.

However, there are instances when even though a party succeeds with judgment given in its favour, it may feel that the victory is meaningless. This is because the costs, both in terms of money and time involved, could turn out to be a loss after all as only nominal compensation or damages are awarded.

In other cases, the costs awarded may be a fraction of what the party has paid to its own solicitors. Or it could be that a substantial amount has been awarded but the other party may be insolvent.

When this happens, the successful litigant may well ask itself whether it should have pursued the litigation after all. Should its solicitors not have advised against instituting or continuing the litigation?

Approach to litigation

This leads to the basic question of how litigation should be viewed and approached. The general trend is for an aggrieved party to see solicitors and tell them that it wants to sue another.

A solicitor acts on the basis of instructions given. Where a party asks solicitors to act, the solicitors are merely following instructions. On the other hand, the party sued is likely to take the stand that since it is being sued, it wants to instruct its solicitors to defend the action.

The matter then proceeds and ends with either victory or defeat, depending on the facts and the law applicable, and sometimes even technicalities. When either party is unsuccessful, it begins to ask itself what went wrong with the process it had embarked upon?

In the context of such a situation, hindsight would suggest a more practical approach. The first step for a party to take is to seek advice on whether the claim should be pursued or challenged.

If and when such an approach is taken, a party would be in a better position to take a more suitable stand. If a party is aware of its own weakness, a compromise would be in the best interest of all.

Assessment

Such an approach is only possible where a party is open to advice before taking a particular approach. This requires solicitors to be provided with a complete narrative of what has happened, including difficulties encountered, as well as all relevant documents.

This would enable the solicitors to look into the matter on a comprehensive basis, including the documents and evidence involved, so that they can provide an assessment of the strength and weaknesses of the case, whether from the plaintiff’s or defendant’s point of view.

Unfortunately, litigants and those who are drawn into litigation tend to feel that it is too troublesome to provide the solicitors with all the evidence and documents at the outset. Most would paint a nice picture of their claim or denial with a request to commence or defend proceedings.

Some litigants are obsessed with speed in filing documents in court. A solicitor who wants to obtain more information and fully look into all aspects can sometimes be viewed as slow or not aggressive enough. This can turn out to be very costly to the litigant.

Merits irrelevant

There are instances when a party wants to file an action irrespective of any of the above considerations. Such a party may have resources to pursue litigation and bear the consequences.

This happens when the decision to litigate, whether by commencing an action or pursuing a defence, is done by considering not just the financial aspect alone.

The right to sue and defend in the courts is the alternative of force. In an organised society, it is the right conservative of all other rights, and lies at the foundation of orderly government, according to William Henry in Chamber vs Baltimore & Ohio.

This right to litigate is referred by Isabella Beeton in The Book of Household Management in which the author says: “We hear of those to whom a lawsuit is an agreeable relaxation, a gentle excitement. One of this class, when remonstrated with, retorted that while one friend kept dogs, and another horses, he, as he had a right to do, kept a lawyer, and no one had a right to dispute his taste”.

Other considerations

There are situations in which litigation has to be relied on in the context of broader considerations. Thus a claim for a small amount may be pursued even though the cost of doing so is more than the sum claimed.

In the case of a businessman or trader, it may be done to signal to his customers who are numerous but owing small amounts, that they cannot get away from meeting their obligations merely because the amount involved is small or costly for him.

Sometimes there is a collateral purpose in commencing an action. One example is in which the media is publishing stories perceived to be defamatory. The person who considers himself defamed may file an action and sometimes apply for an injunction. However, even in cases in which no injunction is sought, there is the effect in some cases of the subject matter not being written on anymore or having a slowdown effect.

Whatever the purpose, it is useful for a litigant to appreciate the intricacies involved and to be well-advised before commencing an action. Whether the litigation is futile or not is a matter that depends on what is involved – the objective of the litigant.

Law - Get togethers for meeting

ARTICLES OF LAW
By BHAG SINGH

Organised committees are regulated by the law or the participants themselves.

When does one hold one kind of meeting or another? In addition, are there limitations as to when such meetings may be convened and conducted? If so, are such conditions and limitations prescribed by law or otherwise complied with?

As stated in the Law of Meetings by Sir Sebag Shaw and Judge Dennis Smith, the word “meeting” is susceptible to many connotations, but in one of its more specific senses, it indicates an assembly of persons.

The same authors go on to say that “it may be fortuitous and casual or organised and contrived, and its objects may be as various as are the interests which are common to the generality of mankind. An assembly may forgather for the purpose of discussion or social intercourse, for entertainment, in order to indulge an aesthetic interest, to receive instruction, or to participate in the administration of public or private affairs”.

Of course, if any unlawful act is committed by any member of an assembly, he may be called to account for the consequences of that act. Thus when people assemble with some common object in view, their collective conduct should be regulated by rules extending beyond those which would affect each member.

Types of meetings

Generally all meetings can be divided into public meetings and private meetings. Public meetings are those which the public generally have access to. Such meetings will be concerned with matters of general interest.

Private meetings are those where people are admitted by virtue of some specific right or special capacity: for example, a meeting of shareholders in a company or the committee of a club.

It is in the context of this latter category that terms such as Annual General Meeting, Extra Ordinary General Meeting and Emergency General Meeting are used. Whether there is a requirement or need to hold them and whether a particular procedure must be followed depends on the nature of the organisation and the law by which it is governed.

In any organisation it is the members who elect the representatives from among themselves to manage the organisation. Such an elected group may be called the board, committee or governing council.

It follows that there needs to be in place a procedure for the members, who may be referred to as the general body, to be kept informed as well as to be able to indicate their approval or otherwise in respect of certain basic and fundamental matters.

AGM

It is in the light of this that such organisations will have an annual general meeting. In the case of companies formed under the Companies Act 1965, there is a statutory requirement to hold an annual general meeting once every calendar year and not more than 15 months after the holding of the last preceding annual general meeting.

If such a meeting cannot be held, the Registrar of Companies is empowered, on application made, to extend this period of time. A failure to hold the meeting as so provided would constitute an offence under the Act.

In the context of companies, what is generally required to be dealt with in an annual general meeting is the declaration of dividends, consideration of the accounts, balance sheets and report of directors and auditors, the election of directors in the place of those retiring, and the appointment and fixing of remuneration of auditors. This is referred to as ordinary business. Anything else is considered special business.

In the Societies Act 1966 which governs the set-up and operation of societies which are associations of seven or more persons, there is no such specific statutory requirement to hold an annual general meeting.

The Act merely sets the guidelines as to matters for which provisions must be made in the constitution or rules of the society. Thus in the case of societies, it is open to the members to state in their rules or constitution what is to be tabled at the annual general meeting.

On account of this, it may be said that the role and rational of the annual general meeting is to inform and discuss matters which are in a way routine matters and yet fundamental and necessary to be dealt with periodically.

Unlike companies, societies may hold their annual general meetings once in two or three years, if the constitution so permits. Some societies adopt a midway approach by electing office bearers for two- or three-year terms, and holding an annual general meeting every year to provide reports and present accounts for approval.

EOGM

Annual general meetings are held to discuss routine matters . To meet this requirement, an extra ordinary general meeting may in some cases be held immediately after the annual general meeting.

But whilst an annual general meeting, by the rules of the organisation must be held, an extra ordinary general meeting is held as and when necessary or not at all. Such a meeting could be called by the committee or at the request of a specified number of members. This is called requisitioning a “meeting”.

Anything could be special business in this regard. Thus the decision to purchase or sell property will be special business as well as decisions to propose a vote of no-confidence in the committee or to reverse a decision earlier made.

Finally, a provision could be made for an emergency general meeting. There is no legal definition of an emergency general meeting but it is sometimes provided for to be called at very short notice for some unusual or urgent matter. This being the case, the power to do so is vested in the committee or in the head of the organisation.

- THE STAR

Law - Too sick to work

By BHAG SINGH

When an employee faces health problems, how long can he be away from work without losing his job?

In view of the global economic slowdown, there is a looming threat of loss of employment as a result of businesses scaling down their operations or closing down.

However, different individuals may face different scenarios and issues of concern.

A reader wrote in to say that because of his poor health, he has used up his entitlement of annual leave.

He does not mind getting no-pay leave but his employers told him that they can no longer continue to employ him and will need to terminate his employment.

Is this fair and allowed by the law, asks our reader.

We are fortunate to be living in a country where there is an abundance of opportunities.

Legislation that has been enacted seeks to provide security of tenure for employees.

Employees cannot be asked to leave without just cause.

This has, in turn, given the impression that lifetime employment is guaranteed which in a way it is.

However, what is not always appreciated by some employees is that an employment is an arrangement in which wages are paid for services rendered.

The obligation of the employer is to pay the salary and other benefits. This is to be reciprocated by the employee performing in the role entrusted to him.

Health problems

So what happens when an employee faces health problems? How long can he be away without losing his job?

The answer to this lies in the terms of the contract of employment between the employer and the employee.

As a rule, in respect of those who earn RM1,500 and below, the Employment Act 1955 provides for a minimum annual leave and paid sick leave.

The entitlement to annual leave is eight days for an employee who has worked for two years or less, 12 days for those who have worked for less than five years, and 16 days for those who have worked beyond that period.

With regard to sick leave, it is 14 days for those who have worked for less than two years, 18 days for those who have worked less than five years, and 22 days for those who have worked more than five years.

Where hospitalisation is necessary, the Employment Act 1955 provides for paid leave of 60 days.

Thus an employee would be entitled to paid sick leave for 60 days even if the employee has not been hospitalised, provided that a medical practitioner certifies that the person is sick enough to be hospitalised, even though he is not.

As a matter of practicality, those who earn more are not likely to get lesser benefits or terms.

Where an employee is entitled to paid sick leave, no difficulty arises.

The employee would have the benefit of paid leave for the number of days on which he is certified as being sick.

But in the case of a serious illness, even 22 days may not be enough.

Of course, if the employee has annual leave which he has not utilised, he could make use of his annual leave. However, this may soon be used up. What happens then?

It is at this stage that the difficulty arises.

From the point of view of the employee, he may have been a dedicated worker and performed his duty conscientiously. That he cannot work now is not his fault. It is because he is sick that he cannot perform.

However, on the part of the employer, it is a business that is being run. Work must be done to generate income so that operating expenses can be met and profits made.

The employer has engaged the employee to assist in this regard. He pays for the employee’s services with some provisions made for rest days and sick days.

If a stage is reached where the employee can no longer perform his basic obligations, then a point has been reached where the employer-employee relationship can be brought to an end with no further obligations either way unless otherwise provided.

What options

Such a scenario is not a happy situation for an employee.

Any further rights would depend on what has been contractually agreed.

In ordinary situations, when an employee takes up employment, such eventualities are seldom thought through.

One possibility is to incorporate a term in the contract of employment to allow an employee further unpaid leave for a certain period of time. It could be six months or one year, or for that matter less or more.

Such a provision could mean that the employee will not be paid during the period of such extended leave.

However, he knows he would be able to go back to his job when he recovers. Whilst recuperating, he will have the comfort of knowing that he has a job to go back to.

However, such terms in an individually negotiated contract of employment are rare and unlikely to be incorporated.

This is because in most ordinary situations, the employee is not in a position to bargain.

On the other hand, the employer also has to ensure consistency in relation to other employees.

The existence of such clauses is more likely in the case of collective agreements negotiated by unions.

Here there may be provisions for more benefits for the employee or alternatively better exit terms.

Conclusion

Of course, even where there is no such clause, there is nothing to prevent an employer from granting extended leave to an employee on a no-pay basis or reduced pay basis.

Thus beyond the contract the employee is on his own.

Providing for such a situation becomes a welfare need which the state can look into. This does exist to some extent in different forms.

Finally, the situation is a reminder of the need to take care of one’s health and to make adequate financial provisions to deal with such an eventuality when it arises.

- THE STAR

Law and lawmakers

By A.ASOHAN

We call Members of Parliament (MPs) and assemblymen “lawmakers” because, as part of the legislative arm of the administration, they are the ones who propose, debate, discuss and finally pass the laws that govern us all.

So it always comes as a surprise to me when many of them do not seem to know anything about the law.

No, I don’t expect them to have an in-depth knowledge of specific sections of selected legislation the same way a lawyer would have. I don’t expect them to be able to quote articles and sub-sections of various laws, or be able to drop some Latin quotes now and again.

Unless, of course, they’ve taken a stance for or against that piece of legislation, in which case I expect them to know what they’re talking about.

But ordinarily, I just expect people in these positions of power to have at least, you know, as much understanding of the law as you and I. If they don’t understand their rights and obligations, how can we expect them to uphold ours?

We ordinary Malaysians know enough about traffic laws to realise that running a red light is illegal, as is double-parking. We know what those yellow boxes are for. And emergency lanes are just for that purpose.

I remember about 10 years ago when an MP suggested that vehicles that stall along emergency lanes be issued tickets. His reasoning was that these vehicles were holding up traffic.

Yep, all those idiot drivers breaking the law and using the emergency lanes to beat traffic were being inconvenienced, poor things. So this MP suggested we punish those using emergency lanes properly so that lawbreakers would not be inconvenienced.

See what happens when all your commuting needs are met by chauffeurs and marked by police outriders?

Ordinary folk like us also know that corruption is a criminal offence and not merely a breach of an individual political party’s code of ethics, but going by the statements that have been flying around since the Malaysian Anti-Corruption Commission (MACC) was formed and began performing its duties, this simple truth seems lost on many politicians.

Many manage to deny this simple truth by using such euphemisms such as “money politics,” so let me spell it out for our lawmakers: It’s C-O-R-R-U-P-T-I-O-N! No two ways about it.

A few months ago, when MACC first started hauling up minor political leaders, a branch chairman of a major political party said at a public gathering that this “crackdown” would only destroy the party.

He said something to the effect of: “Once MACC declares somebody guilty, he can’t prove his innocence and will not be able to participate in the party’s polls. It’s unfair. We should leave such matters to the party to handle.”

This office-bearer seemed completely oblivious to the fact that the MACC can’t “declare” anybody guilty. It can only investigate and prosecute. If the case goes to trial, then the suspect has a chance to prove his innocence through the due process of law.

Again, corruption is not just a party matter. It’s a criminal offence. Any political leader or party member who does not realise this is in essence encouraging criminal acts.

More recently, one of the smarter politicians around actually said that there was a need for the party’s internal mechanism because not all corruption involved money and therefore did not fall under the MACC’s purview.

Huh? Corruption involves any sort of gratification. It doesn’t have to be money. Section 3 of the Malaysian Anti-Corruption Commission Act 2009 defines “gratification” as including money, donations, gifts, loans, fees, rewards, valuable security, property or interest in property, office (as in position), dignity, employment, contract of employment or services, and even any “valuable consideration of any kind” and “any other service or favour of any description.”

It’s all covered there, honest.

As for what constitutes a criminal offence under our anti-corruption laws, just check out Sections 16 to 28. Again, it’s all there.

And if you think that this is an anti-ruling coalition rant, I should point out that the members of the Opposition have generally been no better.

Every time there is a by-election around the corner or some sort of power grab playing out, someone will come out and confess that he was offered a bribe. No big deal, except that the bribe was offered something like eight months ago.

Hello? Why didn’t you lodge a police report then? Why wait for a politically-expedient moment to come out? Laws were broken. Don’t you think that as a responsible citizen, you should have reported it immediately?

Then there was the case of the assemblyman who said he couldn’t stand the pressure – he had been offered bribes and his family had been threatened. His children were going to be kidnapped.

What did this poor Opposition rep do? He “reported” the matter to his party leaders. Talk about taking the cult of personality too far. Did he think that his party superiors were going to ride in on white horses to save the day? He finally lodged a police report months later.

I don’t understand this at all. His political rivals had allegedly threatened to kidnap his children, and he only lodged a police report months later. Brother, as a fellow father I can tell you – you even look funny at my daughters, and I’m going to the nearest police station immediately.

Perhaps our anti-corruption laws should include clauses that make those who were offered bribes and failed to lodge a report within a certain timeframe, as criminally culpable too.

And perhaps we should make it a requirement that anybody elected to office should attend a legal course before they actually take office ... if only so that they understand the law as much as we ordinary joes do.

- THE STAR

Historical legal perspective

By WAN AZHAR WAN AHMAD
Senior Fellow and Director,
Centre for shariah, Law and Political Science, IKIM

During the reign of various Muslim rulers, non-Muslims, too, have sought justice from the Syariah courts.

THE Supreme Court’s judgment in the case of Che Omar Che Soh v PP (1988 and which will be referred to from hence in this article as Che Omar) is considered a landmark case concerning the interpretation of the status of Islam as enshrined in Article 3 of the Constitution.

At the time, the Supreme Court was the highest court in the country’s judicial system.

A number of academics, politicians and lawyers have argued that this case laid to rest the question surrounding the law of the land, that is secular law. Any attempt to change this law is unconstitutional and therefore void.

Article 3(1) proclaims that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.

Some people interpret this Article to mean that Islam encompasses all aspects of human life, while others narrowly construe it to refer only to certain aspects.

Counsel for Che Omar sought to prove the first interpretation, arguing that since Islam does not provide any qisas or hudud punishment for the trafficking in dangerous drugs and firearms offences, and that the Constitution is the supreme law of the land; therefore a mandatory death sentence for those offences is against Islam, unconstitutional and void.

The apex court then had to decide on the possible meaning relative to the term Islam in Article 3. If the meaning is confined only to acts related to rituals and ceremonies, then the argument does not hold weight.

But if Islam is an all-embracing reality and constitutes a comprehensive system of life beyond the ritualistic or ceremonial aspects to include jurisprudence and moral standards, then the argument raised by counsel had wide implications in the sense that every law has to be tested according to that yardstick.

To make it clear, any legal provision that runs counter to the second interpretation, if deemed correct, must be considered unconstitutional and void. To put it in legal language, any law passed after Merdeka Day that is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.

In Che Omar, it was held that the term Islam in Article 3 meant such acts as relating to the ritual and ceremonial only.

The then Lord President Tun Salleh Abas, leading the five-member bench, observed that “if it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void.

“Far from making such [a] provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitu-tion.”

Not rejecting the fact that Islam is “a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial,” Salleh Abas however explained that this was not the meaning intended by the framers of the Constitution.

The learned judge concluded that their real intention was this: Islamic law was to be understood in an isolated manner, confined just to the law of marriage, divorce and inheritance.

He put the responsibility of relegating the scope of Islam, i.e. Islamic law, on the British colonialists following their rule of the land.

I wish to disagree with the judgment.

There was no sufficient evidence given by the learned judge to show that was precisely the intention of the framers.

Assuming that these legal experts knew the history of the country centuries before the coming of the British, they would not have said that the application of Islamic law was limited to personal and family matters only.

In Ramah v Laton (1926), the Supreme Court, presided by two English judges, acknow-ledged that Islamic Law “is not foreign but local law, it is the law of the land”. That statement would not have been made if the learned judges were ignorant of the history of this part of the world.

The late Prof Ahmad Ibrahim argued for decades that Islamic law is the fundamental law of the country. English historian R.J. Wilkinson stated that there can be no doubt that Muslim law would have become the law of the then Malaya had not British law stepped in.

Another point of contention in the judgment of Che Omar was the term “secular law” in the court’s expression: “Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution”.

If one goes through all seven subsections of Article 162, one will discover that the actual term used is “existing law”, not “secular law”. In fact, the term “secular” is not mentioned in the Constitution. It does not appear anywhere in the document.

The Article states, for example, that “the existing law shall ... continue in force on and after Merdeka Day.” Now, what does “existing law” mean?

Islamic law was one of the existing laws practised before, during and after Independence. Historical documents indicate that Islamic law was substantively applied in this country’s legal system long before British occupation, and it was applied not just for ritual and ceremonial purposes.

The Terengganu Inscription dating back to the 13th century and the Undang-undang Melaka (Malacca Laws) in the 15th century, for example, had provisions concerning punishment for adultery, liquor consumption and theft.

This reflects that Islamic law had gained firm legal footing for centuries. The arguments presented by Ahmad Ibrahim in Ramah v Laton and the statement made by Wilkinson simply reaffirm this historical fact.

The general public is under the impression that Islamic law is strictly meant for Muslims. This is not the case in all situations because non-Muslims could seek justice from Syariah courts during the reign of various Muslim rulers.

If this has happened in history, it can still take place today and in the future.

Our esteemed Constitution, various other Acts of Parliament and state enactments contribute to the confusion by putting forth some legal obstacles concerning the application of Islamic law towards non-Muslims.

In reality, under certain circumstances, non-Muslims can and must be allowed to stand either as witnesses or even parties to certain litigations.

In this way, I believe, the misunderstanding and prejudices concerning the Syariah courts may be controlled and gradually reduced, if not eliminated.

- THE STAR
www.thestar.com.my

Privacy is your responsibility

The public should be personally responsible in the fight against privacy invasion, said Bar Council president Datuk Ambiga Sreenevasan.

“If someone sends you a picture, delete it and don’t spread it around.

“The media also needs to play its part by not sensationalising the news,” she said at the council’s forum entitled “Privacy: Does it exist in Malaysia? Is it time to legislate?”

The MCA’s think tank Institute of Strategic Analysis and Policy Research chief executive officer Fui K. Soong said privacy existed in Malaysia but it was everyone’s responsibility to protect it.

“Different societies have varied views on what morality is. It is a challenge to come up with a privacy law as we cannot just take one case and treat it as a norm,” she said.

The forum panelists called for speedy introduction of the Data Protection Bill to fight invasion of privacy and the abolishment of archaic laws, such as those against oral sex.

One participant suggested that the Federal Constitution be amended to include the words “right to privacy” and allow judges to interpret each situation.

Criticisms were also voiced against the invasion of privacy of Selangor exco member and Bukit Lanjan assemblyman Elizabeth Wong, who has tendered her resignation fromboth posts after pictures of her were made public.

Sonya Liew, who heads the initiative for privacy in the council’s Human Rights Committee, said there was no specific law to deal with privacy.

“We should have a Privacy Act, especially given the easy availability of surveillance and image-capturing devices in the market. The Act can fully encompass the different areas of privacy not covered in the Data Protection Bill,” she added.

Former Malay Mail online editor U-En Ng said the question to ask was where the line should be drawn if a person was elected on grounds of purity.

“I find it peculiar that so many preach a moral high ground yet so many are obsessed over whether she took her clothes off or not,” said Ng, who resigned as editor to make a stand over the Wong issue.

Bar Council Human Rights Committee deputy chairman Andrew Khoo questioned whether privacy laws could be used to legislate morality.

“Different people have different standards of morality. How do we decide which standard should be applied?” he said.

- THE STAR

Commentary - It’s in the Constitution

By AZMI SHAROM
Teacher of Law

Sultans and Rajas are constitutional monarchs and have powers determined by the Federal Constitution.

I wish that all those people calling for Karpal Singh’s head would just take a minute and pick up the Federal Constitution. Turn to Article 182 and you will see provisions for a “Special Court”.

The job of this Special Court is to try civil proceedings brought against the Yang di-Pertuan Agong or any of the Sultans.

This was not always the case. Before 1993, the rulers had absolute immunity. And before 1984, they actually had the power to veto legislation. These powers were taken away by the Barisan Nasional government headed by Tun Dr Mahathir Mohamad.

DAP chairman Karpal Singh’s desire for the Sultan of Perak to be brought to court is reasonable and allowed for by law. Besides, I think it is a good thing that the King and the Sultans can be brought to court.

You see, the days of the all-powerful king is gone now and that is, for me at least, progress. It shows that we are a society that values democracy.

Yes, we have Sultans and Rajas, but they are constitutional monarchs. This means that they have powers determined by the Constitution and not some divine power to do as they wish. This being the case, surely if they overstep their boundaries, if they behave in an unconstitutional manner, they should be challenged – respectfully, properly – in a court of law.

Now, did the Sultan of Perak act in a way that was unconstitutional when he appointed a new Mentri Besar? It is arguable.

The power to appoint a Mentri Besar is clearly at the discretion of the Sultan. This is one of the few real powers that he has. A power that he does not have is to dismiss an existing Mentri Besar.

Usually this does not raise many problems. During the last general election, we saw the Sultan of Perak and the Sultan of Terengganu both deciding on who should be the new Mentri Besar of their respective states.

They made decisions that went against the desires of the majority party in both state legislative assemblies. The two monarchs thought that their choices commanded the confidence of the two Houses and were the best men for the job. It was their prerogative.

But the current case in Perak is different. The Sultan chose a new Mentri Besar while the old one was still in office. By appointing a new man, he was in effect sacking the old one. And sacking the Mentri Besar is not within his constitutional powers.

I think there is room for debate on this matter and, ideally, it should be settled in the Special Court.

Actually, I am rather curious as to why the Sultan did not just dissolve the state assembly when requested. All this party-hopping business was wreaking havoc on the public’s faith in the democratic system.

Surely, the clearest and fairest way out of the debacle was to have fresh state elections.

For the sake of continued faith in democracy, I would have thought the Sultan, who has spoken many times so eloquently about democracy and rule of law, would have just said “right, let the people decide again”.

After all, the greatest threat to political, and thus national, stability are a people who have lost their faith in the democratic system. It is only when such faith is lost that extreme behaviour emerges.

Anyway, what is done is done; legal battles are being fought over the Perak matter and that particular crisis will be settled in its own time.

Meanwhile, there is much that can still be achieved. The states ruled by Pakatan Rakyat must continue to push their agenda forward and live up to their election promises.

For example, I notice with a little dismay that the new Selangor government has yet to withdraw the case against Sagong Tasi.

In 2002, Sagong obtained a judgment in his favour by the Court of Appeal which held that his Orang Asli community had a propriety interest in their customary land. This meant that when the land was taken by the government, they should have been properly compensated.

This case was against the former state government and, of course, Datuk Seri Khir Toyo and his men appealed the decision.

Considering the fact that Pakatan Rakyat is concerned about justice and fair treatment to all Malaysians, and considering also that the last MB of Perak was making headway in granting proper titles to the Orang Asli in his state, the current Selangor government should just stop the action.

Yes, the battle of Perak must continue. But there are many other battles to be fought and won. Fairness and justice must be striven for on all fronts, continuously. It’s easy to forget this amid the shrill cries of “traitor” by the ill-informed.

- THE STAR