Equality is not about being liberal, ex-judge tells former chief justice


Source: The Malaysian Insider

Lawyer Gopal Sri Ram arrives at the Federal Court in Putrajaya, outside Kuala Lumpur on October 30, 2014. The Malaysian Insider/Najjua Zulkefli

Lawyer Gopal Sri Ram arrives at the Federal Court in Putrajaya, outside Kuala Lumpur on October 30, 2014. The Malaysian Insider/Najjua Zulkefli

A retired Federal Court judge has taken a former chief justice to task for claiming that liberal-minded judges are a threat to Malaysia’s Islamic values as they used Western human rights as a benchmark to administer justice.

Datuk Seri Gopal Sri Ram said it was wrong for Tun Abdul Hamid Mohamad to label judges as liberals because those who sat on the bench were required to interpret the law correctly.

“It is a most unfair criticism to level against a Court of Appeal judgment which accorded equality to people different from us, purely on medical reasons,” he told The Malaysian Insider.

Sri Ram said this in response to a report in Utusan Malaysia on Monday where Hamid was quoted as saying that the liberal judges had overlooked that the Federal Constitution recognised offences under Islamic law.

Hamid cited the Court of Appeal landmark ruling last year which declared Section 66 of the Syariah Criminal (Negri Sembilan) Enactment 1992 void and unconstitutional.

That provision punished Muslim men who dress up as women.

Three make-up artists had challenged the constitutionalty of the law after they were penalised for cross-dressing.

Sri Ram, who has written numerous landmark judgments in administrative and constitutional law, said judges who supported discrimination against transgenders are perfectly capable of being prejudiced againt those who are mentally and physically challenged.

“(The judges) used the principle of reasonableness which was adopted by the Supreme Court of India, which allowed judges to declare laws made by Parliament to be invalid.”

Hamid, however, had said that the constitution of those countries are not the same as ours.

“Their constitution does not have provisions regarding Islam, unlike ours. Their values are not the same as ours,” Hamid was reported as saying in the Umno-owned daily.

Hamid, who retired in 2008 said the judgment had a very wide implication since Shariah laws enacted by the states could now be declared unconstitutional.

This includes laws which allows Muslims to practice polygamy, compel them to make zakat payments, forbid them from consuming alcohol and criminalising adultery.

“When Islamic law can be challenged on grounds of being unreasonable by judges, including non-Muslim judges, then Islamic laws will constantly be exposed to being invalidated.

“In fact, that judgment has opened a path towards allowing same-sex marriages,” Hamid had said in response to the newspaper’s request for his comments on the US Supreme Court declaration last week that same-sex marriage is legal in all 50 states.

The Federal Court will hear on August 13 Putrajaya, the Negri Sembilan government and the state religious council’s appeal on the matter.

Sri Ram said it was not surprising for Hamid to have expressed such opinion as he has done.

“After all, he is the judge who held that a Muslim will not tell lies and a non-Muslim will.

“He is also the judge who pronounced that there is no separation of powers in our constitution, which is an outlandish proposition that went against so many Commonwealth cases decided by the Privy Council,” he added.

Sri Ram said giving equality to persons who were different from the normal individuals was not a Western tradition.

“It is very much an Asian and Malaysian tradition. We have always shown kindness and compassion to those who are less privileged,” he said, adding that the Court of Appeal must be praised.

Sri Ram said Hamid’s fear that same sex marriages was unfounded and is akin to seeing ghosts in the branches of trees as their leaves rustle in the breeze.

Meanwhile, constitutional lawyer Syahredzan Johan (pic, left) said international human rights fitted all in dispensing justice.

“Judges must be able to interpret the inherent meaning in the constitution or else the written law will be a dead letter,” he said.

He said some judges had contributed to the development of the Malaysian law, especially in the area of human rights.

“Judges must set aside their religious, cultural and personal belief in interpreting issues related to the constitution,” said Syahredzan, reminding that they have also taken judicial oath to defend and protect the supreme law of the nation.

He said the Indian constititution in many ways was similar to the Malaysian document.

“Is Hamid saying that the concept of reasonableness is foreign to Islam? Surely, it cannot be the case,” he said. – July 2, 2015.


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