Testing time for the Constitution — Shad Saleem Faruqi

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Source: The Star Online

BY SHAD SALEEM FARUQI

Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

Two Bills and several recent developments are giving legal experts plenty to talk about.

IT has been an extraordinary fortnight for constitutional lawyers. A multitude of issues has surged up against the Constitution. There are two important Bills in Parliament and a number of developments that impact constitutionalism in the country.

Parliamentary privilege: The questioning of some MPs by the police for their parliamentary words raises important questions about Parliament’s ability to scrutinise the executive.

Article 63(2) of the Federal Constitution is also brought in play. The Article states that “No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee thereof”.

The immunity is effective against all criminal and civil laws, including the Official Secrets Act, the Penal Code and the Defama­tion Act. But it is subject to a number of exceptions.

First, under Article 63(4), the immunity does not apply to an offence under the Sedition Act. Second, it applies only if the words or actions were part of parliamentary proceedings. That is why MP Rafizi was convicted for violating the Official Secrets Act for a disclosure outside the proceedings of Parliament.

Third, though parliamentary words are immune from court proceedings, MPs can be sanctioned by the House for contempt. That is why an attempt was made on Monday to refer Deputy Minister Tajuddin Abdul Rahman to the privileges committee for his sexist remark during question time.

Bersih 5: The Bersih 5 rally triggered a debate about citizens’ rights and police powers under the Peaceful Assembly Act 2012. The rally aroused grave fears of strife in the streets.

Fortunately, the demonstrators acted with restraint. The Kuala Lumpur police force conducted itself with professionalism and kept the antagonists apart. Our system of democracy and our political maturity were tested. We scored well and the nation is better for it.

However, the initial police description of the Bersih 5 rally as illegal has important implications for the right to assembly as enshrined in Article 10 and the Peaceful Assembly Act. Likewise, the attempt by some private groups to obtain an injunction against the rally organisers is constitutionally significant.

Justice S. Nantha Balan held that the police are legally bound by Section 18 of the Peaceful Assembly Act to redirect any counter-rallies if they know that clashes are imminent.

He also ruled that no private citizen or groups should use the court to prevent any organisations from exercising their constitutional right to assemble.

These are useful guidelines for the future.

Sosma: Grave reservations have been raised about the use of the Security Offences (Special Measures) Act 2012 against Maria Chin Abdullah, the Bersih organiser who has been detained for 28 days. Her habeas corpus application to challenge the validity of her detention is pending in the courts.

RUU 355: The Hadi Bill to enhance criminal penalties under the Syariah Courts (Criminal Jurisdiction) Act 1965 is about to be tabled in Parliament for second reading. My analysis of this Bill was carried in The Star on June 9 this year.

The Bill (as it stood in June) permits “any sentence allowed by Islamic law”. There is, therefore, a real possibility that some states may resort to amputations, crucifixions, up to 100 lashes of the whip, forfeiture of property and imprisonment for unspecified periods.

Such a law will not be desirable. In criminal law, there should be uniform application of the state’s coercive powers against delinquents.

In the Hadi Bill, there is no emphasis on uniformity from state to state. Each state can choose which penalties to impose.

The Hadi Bill is a regression from the present position, where only three types of penalties (lashes, fine and imprisonment) with strict upper limits are prescribed in all states.

Though it is justified to raise the 3-6-5 bar, some upper limits must be prescribed. Hopefully, a Select Committee will look into these issues.

Conversion of infants: Long-awaited amendments to the Law Reform (Marriage and Divorce) Act 1976 to deal with unilateral conversion of infants have been tabled in Parliament.

This is most welcome because the last few decades have witnessed heart-wrenching stories of infants separated from pining mothers. Some of the husbands had converted to Islam to avoid their marital obligations under civil law.

The draft law proposes that divorce matters involving civil marriages must be adjudicated in civil courts, even if one party has converted to Islam. The converting spouse cannot unilaterally convert the infant children to Islam without the consent of the other spouse.

This is in line with the spirit of Article 8 of the Constitution, which enjoins gender equality. It is in line with Article 12(4) when read with the Eleventh Schedule, Section 2(95).

Article 12 says that for purposes of education, “the religion of a person under the age of 18 shall be decided by his parent or guardian”. Section 2(95) clarifies that “words in the singular include the plural, and words in the plural include the singular”.

The problem is that in Subashini v Sara­vanan (2007), the Federal Court ruled by a majority of 2-1 that any one parent had the right to convert a child. With all due respect to the learned judges, there is no indication that they were briefed on Section 2(95) of the Eleventh Schedule. Had they been so briefed, perhaps they would have decided otherwise.

Parliament should go ahead and base the new law on Section 2(95), and there is no need to amend the Constitution as some learned syariah lawyers are suggesting.

But there remains the problem of 14 state Muslim family law enactments, some of which adopt a similar rule as in Subashini. The states must amend these laws because these laws were ultra vires the jurisdiction of the states from day one.

Non-Muslim family law is a federal matter and no state has the right to legislate on non-Muslim family issues. If a valid federal law conflicts with a state law, then Article 75 states that the federal law shall prevail.

Nevertheless, it will be good if a parliamentary Select Committee thoroughly examines the constitutional law dimension of this imbroglio.

 

Shad Faruqi is Emeritus Professor of Law at UiTM.