Need for an enlightened judiciary — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

OF late we have heard a ratcheting up of proposals to fortify our body politic – by amending the Federal Constitution. The outgoing chief justice proposes that we amend the constitution to entrench the right to a clean and healthy environment. Several NGOs also clamour for the inclusion of the tenets of the Rukun Negara as a preamble to our constitution.

All very laudable. And certainly well-meant, of course. These beneficent add-ons cannot but help strengthen the protection of the environment, the rule of law, rights, preserve the integrity of institutions and keep unbridled power in check.

The objective is to ensure that new laws are shaped – and existing laws reshaped – to put into effect the thrust of these changes; and by which the country’s governance will be adjudged. And that the courts, as the final arbiter when there is a contestation between the citizenry and the executive, will implement these accordingly.

This is where the rub lies. There are already sufficient provisions in our laws – written laws passed by Parliament, the common law (pronounced by court decisions) and the custom or usage of our natives (the orang asal of Sarawak and Sabah; and the orang asli of Peninsular Malaysia) – to achieve the same objectives. Read more

Rights up our street — Tunku Zain Al-’Abidin

Source: The Malay Mail Online

By Tunku Zain Al-’Abidin

opinion-clipart-k12118272DECEMBER 17 — Most national constitutions refer to the rights that the state must respect and promote for its citizens.

Part Two of our Federal Constitution is headed “Fundamental Liberties”: here are articles about protecting the liberty of the person; prohibiting slavery and forced labour; protection against retrospective criminal laws and repeated trials; equality before the law; prohibition of banishment and freedom of movement; freedom of speech, assembly and association; freedom of religion; educational rights; and rights to property. Related matters concerning citizenship, elections and preventive detention are addressed elsewhere in the document.

Our early leaders spoke often about these rights. Our first Yang di-Pertuan Agong referred to the Federal Constitution as “a charter of our common belief that certain fundamental principles are essential to the dignity and self-respect of man”, while our first Prime Minister, who proclaimed Malaysia as a democracy founded upon liberty and justice, led the call for the formation of the National Human Rights Society (Hakam) on Human Rights Day (Dec 10, 1988).

Today there are many organisations working explicitly towards human rights objectives, while others combine on-the-ground services to the marginalised with an advocacy role. In addition there are the corporate responsibility arms of companies that indirectly promote similar causes, boosting the volunteer efforts that run shelters, orphanages, soup kitchens and homeschooling programmes. Read more

Adequate housing dilemma in Malaysia: A human rights perspective — Dr Shahrul Mizan Ismail

Source: The Malay Mail Online

BY DR SHAHRUL MIZAN ISMAIL

SEPTEMBER 18 — The recent proposal by the Urban Wellbeing, Housing and Local Government Minister to allow housing developers to give loans to potential house buyers has caused quite a stir among the netizens in social media. Not only has it invited comments and criticisms, but also quite a number of new ideas and alternative proposals to resolve the issue. Not many would know however, that the right to adequate housing is actually a recognised universal human rights, classified as the second generation of human rights, which was first embodied in the Universal Declaration of Human Rights (UDHR), and adopted by the UN General Assembly in 1948.

Rice

Article 25 (1) states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services…” The Declaration is not a binding treaty but was signed by all member states of the United Nations. Read more

What can we do? — Tunku Zain Al-’Abidin

Source: The Malay Mail Online

BY TUNKU ZAIN AL-‘ABIDIN

AUGUST 5 — Readers of apparently all ages and backgrounds concerned about ongoings in the country have been asking me: What can we do?

This question stems from concern and pessimism about the future of the country, compounded by a fear that they will get in trouble for speaking their mind about certain issues. It is indeed sad that so many people feel this way in a country that was explicitly founded on democratic principles.

firstParliament_0508_620_472_100

The first sitting of Parliament of the Federation of Malaya on Sept 15, 1959 at the old Parliament House which is now the Malaysian Tourism Centre in Jalan Ampang. — Picture from National Archives

On Instagram (@tz.n9) I have shared the speech that the first Yang di-Pertuan Agong delivered in the Dewan Ra’ayat (as it was then spelled, sitting in a hall that is today the Malaysian Tourism Centre on Jalan Ampang in Kuala Lumpur) in its first session on Sept 12, 1959.

In his historic royal address, His Majesty said that the Federal Constitution is “a democratic achievement of the highest order. It is the product of many minds working with a common aim, to evolve a basic charter for this new Malayan nation of ours — a charter drawn from our past experience and suited to the conditions of our surroundings and way of life — a charter of our firm faith in the concepts and traditions of parliamentary democracy — and finally, and most important of all, a charter of our common belief that certain fundamental liberties are essential to the dignity and self-respect of man.”

Speaking to all citizens, Tuanku Abdul Rahman stressed that the Constitution “belongs to all of us” — to the Agong, to the Members of Parliament, and “to the people as the fount of power.” Read more

Free speech a ‘privilege’? Read the Constitution properly, rights advocates tell minister

Source: The Malay Mail Online

Social activist Maria Chin Abdullah of electoral reform watchdog Bersih 2.0 went a step further and told the federal minister to resign if he was unable to comprehend the tenets of the country’s supreme law. — Picture by Saw Siow Feng

Social activist Maria Chin Abdullah of electoral reform watchdog Bersih 2.0 went a step further and told the federal minister to resign if he was unable to comprehend the tenets of the country’s supreme law. — Picture by Saw Siow Feng

KUALA LUMPUR, March 4 — Datuk Seri Salleh Said Keruak should learn how to read the law properly in order not to mislead less-informed Malaysians of their constitutional guarantees, rights advocates said after the communications and multimedia minister asserted free speech to be a “privilege”.

Social activist Maria Chin Abdullah of electoral reform watchdog Bersih 2.0 went a step further and told the federal minister to resign if he was unable to comprehend the tenets of the country’s supreme law.

“If he as a minister can’t understand the Constitution, then he should resign. He is a lawmaker,” Chin told Malay Mail Online.

She was responding to Salleh’s blog post yesterday in which the Sabah leader said Malaysians were treating the expression of their opinions as an “absolute right” rather than a “privilege“ that can sometimes be withdrawn if abused. Read more

Freedom of Speech is not absolute

Source: The Star Online

Datuk Seri Salleh Said Keruak pointed out that even Western countries have laws to regulate matters concerning ‘slander, defamation, degrading, racism, sexism, and so on.’ — Bernama pic

Datuk Seri Salleh Said Keruak — Bernama pic

PETALING JAYA: Freedom of speech and the expressing of one’s opinion must be treated as a privilege rather than an absolute right, says Datuk Seri Dr Salleh Said Keruak.

“And privileges, if abused, can sometimes be withdrawn. There is no such thing as absolute freedom of speech,” the Communications and Multimedia Minister said in a blog post on Thursday.

Read more

Indira seeks to recuse CJ, judge from hearing conversion case

Source: The Malaysian Outsider

M. Indira Gandhi is pictured at the Court of Appeal, Putrajaya, December 30, 2015. ― Picture by Saw Siow Feng

M. Indira Gandhi is pictured at the Court of Appeal, Putrajaya, December 30, 2015. ― Picture by Saw Siow Feng

M. Indira Gandhi is requesting Chief Justice Tun Arifin Zakaria and judge Tan Sri Raus Sharif to recuse themselves from hearing her case.

Kindergarten teacher M. Indira Gandhi, who is appealing to reverse the Courts of Appeal ruling on unilateral conversion of her minor children, has requested that Chief Justice Tun Arifin Zakaria and his number two Tan Sri Raus Sharif be excluded from hearing her case. Read more

Public Forum on “Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?” [Updated]

Recent judicial decisions in a string of constitutional challenges, all within the span of one month, have raised serious doubts whether the fundamental and minority rights guaranteed in the Federal Constitution are being protected and preserved by the courts.

(1) Firstly, on 28 Sept 2015, the Federal Court in the Ezra Zaid case decided that in respect of Muslim persons, the freedom of speech and expression under the Federal Constitution could be circumscribed by a state Islamic enactment.  The Court interpreted the provisions of the enactment liberally, without proper regard for the constitutionally-guaranteed fundamental liberty of the individual.

(2) Three days later, on 1 Oct 2015, the Court of Appeal in the R Yuneswaran case chose to depart from its earlier decision in Nik Nazmi Nik Ahmad’s case.  The Court held that section 9(5) of the Peaceful Assembly Act 2012 was not unconstitutional, as Parliament could criminalise the failure of an individual to give 10 days’ prior notification of the holding of a peaceful assembly.  The Court failed to appreciate that a criminal sanction in relation to a procedural non-compliance of the Act is a de facto restriction of the constitutional right to assemble peaceably and without arms, and therefore unconstitutional.

(3) Then, on 6 Oct 2015, the Federal Court in Azmi Sharom’s case decided that a pre-Merdeka law, namely the Sedition Act 1948, which criminalises speech, is constitutionally valid.  In this regard, the transitional provisions in the Federal Constitution, which allows for Parliament to retain pre-Merdeka limitations on free speech, were upheld.  It has been decided that there is no obligation for Parliament to apply its mind, post-Merdeka, to ensure that restrictions to free speech were only to be imposed for the purposes permitted by the Federal Constitution.

(4) Two days later, on 8 Oct 2015, the Federal Court in the case of State Government of Negeri Sembilan & Ors v Muhammad Juzaili & Ors allowed an appeal by the state concerning three transgender women who had been charged with the offence of cross-dressing.  The Court relied on a purported procedural non-compliance to set aside the ground-breaking and rights-upholding decision of the Court of Appeal in favour of the three transgender women.

(5) On 13 Oct 2015, the Federal Court in See Chee How & Anor v Pengerusi Suruhanjaya Pilihanraya Malaysia denied leave to appeal in a case involving the re-delineation exercise in Sarawak.  The Court appeared to have decided that the leave application was academic, as the Election Commission had already completed the exercise and submitted its report to the Prime Minister.  The fact that the report had not yet been placed before Parliament, and was therefore not yet acted upon, was not considered relevant.

(6) Finally, it was reported that on 20 Oct 2015, the Federal Court dismissed the constitutional challenge to the Kelantan Syariah Criminal Code (II) (1993) on the basis that the applicants were not Muslims.  This narrow reading of the requirement of standing (locus standi) resulted in the court side-stepping the substantive merits of the case, which include the basic structure of the Federal Constitution as well the fundamental rights found in Part 2 of the Federal Constitution.

These cases demonstrate a great reluctance on the part of the courts to invalidate legislation or state enactments on constitutional grounds.  Where fundamental liberties are concerned, the courts are prepared to interpret restrictions widely, to the point where the exercise of the fundamental right is either completely prevented or rendered illusory.  The interest of the state appears to prevail over the constitutional rights of citizens.

Many troubling issues and questions arise from these cases.  Has the Judiciary abdicated its responsibility to “preserve, protect, and defend” the sanctity of the Federal Constitution?  Can individuals and minorities look to the courts to defend their fundamental rights?  Is the doctrine of separation of powers alive and well in our constitutional scheme?  Or have our Courts become subservient to the legislature and the executive?  Are our Courts asserting their judicial power and independence in upholding the rule of law?  Or are our Courts prepared to allow rule by law and the abnegation of individual and fundamental constitutional rights?

To address these concerns and other matters, the Bar Council is organising a public forum entitled “Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?”  We will have the benefit of the views of constitutional lawyers and an eminent panel of retired senior judges.

The details of the public forum are as follows:

Date:                         19 Dec 2015 (Saturday)
Time:                        9:30 am to 12:00 pm (Registration begins at 9:00 am)
Venue:                      Raja Aziz Addruse Auditorium, Straits Trading Building, Unit 2-02A, 2nd Floor, 2 Leboh Pasar Besar, Kuala Lumpur

Admission is free, but advance registration is required.

The confirmed speakers are:

(1)    Aston Paiva, Member of the Bar;
(2)    Andrew Khoo Chin Hock,  Co-Chairperson, Bar Council Human Rights Committee; and
(3)    Dr Azmi Sharom, Associate Professor of Law, University of Malaya.

The retired senior judges that have been invited, include:

(1)    Dato’ Mohamad Ariff b Md Yusof, retired Judge of the Court of Appeal; and
(2)    Dato’ Mohd Hishamudin Mohd Yunus, retired Judge of the Court of Appeal.

To register, please download, complete and submit the event reply slip by 17 Dec 2015 (Thursday) to anusha@malaysianbar.org.my, or bazli@malaysianbar.org.my, or by fax at 03-2031 6640.

Should you have any enquiries, please contact Anusha Gopala Krishnan, Officer (03-2050 2097; anusha@malaysianbar.org.my) or Muhammad Bazli Naim b Abdul Azid, Administrative Assistant (03-2050 2094; bazli@malaysianbar.org.my).

Civil society, free press important for country to thrive, Obama tells Najib

Source: The Malay Mail Online

Civil society activists sit down to a meeting with US President Barack Obama (right) at his hotel in Kuala Lumpur, Malaysia, November 21, 2015. — Picture by Choo Choy May

Civil society activists sit down to a meeting with US President Barack Obama (right) at his hotel in Kuala Lumpur, Malaysia, November 21, 2015. — Picture by Choo Choy May

KUALA LUMPUR, Nov 22 — A developed civil society and free press are important markers that reflect the development of a country, US President Barack Obama said today.

The world leader said he has emphasised the importance of civil society and press to Prime Minister Datuk Seri Najib Razak, after a rare meeting here yesterday with some of Malaysia’s civil society leaders and voiced the US government’s support for their work.

“I also emphasised to PM Najib the importance of civil society and free press,” he told a news conference during the Asean Summit here.

He added that while the US does not expect every country to follow its standards, a certain basic level should be met.

“Every country here has different levels and stages of development both socially and economically.

“We don’t expect that everybody follows the same pattern the US does, but there are some basic principles that are important for us to uphold, as friends and partners to the countries that we are talking to,” he said.

Obama has described Malaysia as a country with diverse faiths and cultures that will benefit from allowing a multitude of voices to be heard, after meeting several prominent civil society activists, including National Human Rights Society president Datuk Ambiga Sreenevasan, electoral reforms watchdog chief Maria Chin Abdullah, anti-graft group C4 director Cynthia Gabriel, and Nisha Ayub from the Justice for Sisters group. Read more

At meeting with Maria Chin, Ambiga, NGO leaders, Obama says US backs their ‘work’

Source: The Malay Mail Online

Civil society activists sit down to a meeting with US President Barack Obama (right) at his hotel in Kuala Lumpur, Malaysia, November 21, 2015. — Picture by Choo Choy May

Civil society activists sit down to a meeting with US President Barack Obama (centre) at his hotel in Kuala Lumpur, Malaysia, November 21, 2015. — Picture by Choo Choy May

KUALA LUMPUR, Nov 21 — US President Barack Obama today expressed support for the efforts by civil society groups here, when he met leaders from several Malaysian organisations at the US embassy today.

In the rare meeting that included Bersih 2.0 chairman Maria Chin Abdullah, Negaraku patron Datuk Ambiga Sreenevasan, C4 director Cynthia Gabriel, and Nisha Ayub from the Justice for Sisters group, among others, Obama described Malaysia as a country with diverse faiths and cultures that will benefit from allowing a multitude of voices to be heard.

“Many of you civil society groups are concerned about any constrictions on civil liberties and civil rights, and also in expanding the boundaries of civil society so that people here in Malaysia and around the region are able to have their voices heard.

“We very much appreciate the work that they do. One of the reasons I want to meet with them is to send a clear message that the US stands behind the important work that they are doing on a day-to-day basis,” he said in opening statements at the meeting.

Obama stated that the US firmly believed that having a strong civil society was necessary to achieve more accountable governance, and that it was his country’s policy to meet leaders of such groups during his trips abroad.

He also described Malaysia as make remarkable advances in the areas of freedom of the press, freedom of religion, and freedom of assembly, among others. Read more