Arbitrary Sedition Act makes ‘promoting atheism’ a crime, lawyers explain

Source: The Malay Mail Online

KUALA LUMPUR, Nov 25 — The Sedition Act could be used by the government against those who promote atheism in limited situations due to the law’s broad definitions and the current state of Malaysia, lawyers have said.

Civil rights lawyer Syahredzan Johan ― Picture by Choo Choy May

Civil rights lawyer Syahredzan Johan said there is no specific legislation that makes atheism an offence under civil laws, further arguing that the Sedition Act cannot be used against someone for being an atheist.

“Being an atheist is not seditious, especially if it is done in private.

“Spreading atheism may be deemed as seditious in certain circumstances, such as if it is done by insulting or undermining other faiths, especially Islam. But that is because the Sedition Act is so wide and arbitrary and can be used in many ways,” he said, adding that this was why the Sedition Act should be abolished. Read more

Lawyers: Change state Islamic laws to match proposed unilateral child conversion ban

Source: The Malay Mail Online

Perlis legislative assembly approved the Islamic Religion Administration Enactment (Amendment) 2016 Bill by a 13-1 majority on 9 December 2016. Image taken from FMT News.

Perlis legislative assembly approved the Islamic Religion Administration Enactment (Amendment) 2016 Bill by a 13-1 majority on 9 December 2016. Image taken from FMT News.

KUALA LUMPUR, Dec 11 — All state Islamic laws that currently allow children to be unilaterally converted to Islam should be amended to match a proposed federal law barring such acts, lawyers have said.

Lawyers said that the Perlis amendment of its state law on Thursday — which removed the need for both parents’ consent before a child can be converted to Islam — contradicts and conflicts with a planned federal law amendment.

Lawyer Surendra Ananth said if the Law Reform (Marriage and Divorce) Act’s (LRA) planned amendment which will require both parents’ consent before a child from a civil marriage is converted to Islam is passed and comes into force, the conflicting Perlis amendment requiring only either parent’s consent will be “null and void” in such cases.

“The Islamic Enactment made by the Perlis State Legislative assembly is a form of state law. It’s status does not change just because it is a “religious law”. It is like any other State law, and therefore must give way to federal law and the Federal Constitution,” he told Malay Mail Online when contacted, citing the Federal Constitution’s Article 75 which says federal law will prevail over inconsistent state laws. Read more

Act 355 is about Hudud, even if amended as proposed ― Surendra Ananth

Source: The Malay Mail Online

BY SURENDRA ANANTH

NOVEMBER 24 ― The Deputy Prime Minister recently announced that the private members bill by Datuk Seri Abdul Hadi Awang to amend the Shariah Courts (Criminal Jurisdiction) Act 1965 (the “Act”) would be tabled with amendments, and that a Parliamentary Select Committee would be established to study the said bill.

PAS lawmaker Datuk Khairuddin Aman Razali was reported as having said that the amended bill would allow the Shariah Courts to impose 30 years prison, fines up to RM100,000 and no more than 100 strokes of the cane.

The Deputy Prime Minister assured the public that the bill is not about Hudud. To be clear, he was reported as having said:

“This Bill is not about Hudud. We want to empower Shariah courts. Is it wrong for us to empower Shariah courts?”

This is a big misconception. The said bill will pave way for the enforcement of hudud. Let us be clear on how the Islamic criminal justice system is implemented in Malaysia. All form of Islamic law, including the establishment of Shariah courts, stems from Item 1 of the State List in the Federal Constitution. The relevant part of the item reads:

“the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law”

In essence, it is up to Parliament to determine what offences the Shariah Court has jurisdiction over. Read more

Bersih arrests contrary to Government’s position — Surendra Ananth

Source: The Malay Mail Online

opinion-clipart-k12118272

BY SURENDRA ANANTH

NOVEMBER 21 — In the past few days, we have witnessed a number of arrests under section 124B of the Penal Code, which prohibits “activities detrimental to parliamentary democracy.” This provision was passed in the House of Representatives on April 17, .2012 and came into force on July 31, 2012.

We know for a fact that these arrests were done in relation to the Bersih rally held on 19.11.2016. It is undisputed that the rally was conducted peacefully. It is also undisputed that the rally was organized to raise awareness on the need for, amongst others, institutional reforms in light of the 1MDB scandal.

The pivotal question is whether the organisation of the rally is an activity “detrimental to parliamentary democracy. Read more

Confronting The Constitutionality of Hudud — Malik Imtiaz Sarwar & Surendra Ananth

CONFRONTING THE CONSTITUTIONALITY OF HUDUD
Malayan Law Journal Article Supplement Volume 4, [2016] 4 MLJ xii

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya


INTRODUCTION

On 25 November 1993, the Kelantan State Legislature had unanimously passed the Syariah Criminal Code II 1993 (‘1993 Enactment’).1 The aim of the 1993 Enactment was to introduce a broader scheme of Islamic criminal law than had been hitherto established in Kelantan or any other state in the Federation and which overlapped with the federal criminal law framework.

Unsurprisingly, the 1993 Enactment engendered controversy on several fronts. It was contended that the said enactment was unconstitutional for, amongst other things, attempting to create a parallel criminal law system that went beyond the limited scope of the Islamic personal law framework permitted by the Federal Constitution (‘the Constitution’), this exercise involving a usurpation of Parliament’s exclusive legislative authority over matters of criminal law in the public sphere.2 It was also contended that the offences that the Kelantan State Legislature had created were offences that were not reflective of the offences under Syariah Law that were meant to be the basis of the enacted offences.3 Read more

Confronting The Constitutionality of Hudud — Malik Imtiaz Sarwar & Surendra Ananth

CONFRONTING THE CONSTITUTIONALITY OF HUDUD
Malayan Law Journal Article Supplement Volume 4, [2016] 4 MLJ xii

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya

pdf

 

INTRODUCTION

On 25 November 1993, the Kelantan State Legislature had unanimously passed the Syariah Criminal Code II 1993 (‘1993 Enactment’).1 The aim of the 1993 Enactment was to introduce a broader scheme of Islamic criminal law than had been hitherto established in Kelantan or any other state in the Federation and which overlapped with the federal criminal law framework.

Unsurprisingly, the 1993 Enactment engendered controversy on several fronts. It was contended that the said enactment was unconstitutional for, amongst other things, attempting to create a parallel criminal law system that went beyond the limited scope of the Islamic personal law framework permitted by the Federal Constitution (‘the Constitution’), this exercise involving a usurpation of Parliament’s exclusive legislative authority over matters of criminal law in the public sphere.2 It was also contended that the offences that the Kelantan State Legislature had created were offences that were not reflective of the offences under Syariah Law that were meant to be the basis of the enacted offences.3 Read more

The National Security Council Bill: A Colorable Exercise of Power — Malik Imtiaz Sarwar & Surendra Ananth

THE NATIONAL SECURITY COUNCIL BILL:
A COLORABLE EXERCISE OF POWER
[2016] 2 MLJ cxix

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya[1]

 

INTRODUCTION

The National Security Council Bill 2015 (the ‘Bill’) was moved by the Minister in the Prime Minister’s Department, Dato’ Seri Shahidan bin Kassim, on 1 December 2015, in the Dewan Rakyat. In moving the Bill, the Minister invoked art 74(1) of the Federal Constitution (‘the Constitution’) and positioned the Bill as concerning matters that were within the Federal List under the Ninth Schedule of the Constitution. The Bill was passed by the Dewan Rakyat on 3 December 2015 and was subsequently passed by the Dewan Negara on 22 December 2015. In the ordinary course, by virtue of art 66(4A) of the Constitution, the Bill would have become law on 21 January 2016. However, for reasons that are not immediately apparent, the Bill was placed before the Conference of Rulers, which has since remitted the Bill back to the Government for review. The nature of their review sought has not been made public.[2]

The passage of the Bill through Parliament was not without controversy.[3] For immediate purpose the most relevant concerns raised by parties opposed to the Bill were whether the Bill was constitutional in light of provisions of the Bill allowing for the contravention of guaranteed fundamental liberties under Part II of the Constitution, and whether the Bill allowed for the usurpation of the exclusive powers of the Yang di-Pertuan Agong (‘YDPA’) under art 150 of the Constitution.

Close consideration of the Bill reveals that the said concerns are not misplaced. It further becomes evident that, additionally, the Bill violates the Constitution for having been enacted in a manner not countenanced by the same.

This article seeks to support these conclusions by demonstrating that the legislative power under art 74 of the Constitution could not have been justifiably invoked for the enacting of the Bill, or any law of a nature similar to it. It will be shown that key provisions of the Bill infringe Part II of the Constitution, and that Parliament could only enact a law containing such provisions as exceptional legislation under arts 149 or 150(5) of the Constitution. It will also be shown that the effect of the Bill is to unlawfully arrogate powers that are exclusively vested in the YDPA by art 150 of the Constitution to the Executive. Finally, in light of these mattes, it will be argued that the Bill is the product of a colorable exercise of power by Parliament. Read more

The National Security Council Bill: A Colorable Exercise of Power — Malik Imtiaz Sarwar & Surendra Ananth

THE NATIONAL SECURITY COUNCIL BILL:
A COLORABLE EXERCISE OF POWER
[2016] 2 MLJ cxix

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya[1]

 

pdfINTRODUCTION

The National Security Council Bill 2015 (the ‘Bill’) was moved by the Minister in the Prime Minister’s Department, Dato’ Seri Shahidan bin Kassim, on 1 December 2015, in the Dewan Rakyat. In moving the Bill, the Minister invoked art 74(1) of the Federal Constitution (‘the Constitution’) and positioned the Bill as concerning matters that were within the Federal List under the Ninth Schedule of the Constitution. The Bill was passed by the Dewan Rakyat on 3 December 2015 and was subsequently passed by the Dewan Negara on 22 December 2015. In the ordinary course, by virtue of art 66(4A) of the Constitution, the Bill would have become law on 21 January 2016. However, for reasons that are not immediately apparent, the Bill was placed before the Conference of Rulers, which has since remitted the Bill back to the Government for review. The nature of their review sought has not been made public.[2]

The passage of the Bill through Parliament was not without controversy.[3] For immediate purpose the most relevant concerns raised by parties opposed to the Bill were whether the Bill was constitutional in light of provisions of the Bill allowing for the contravention of guaranteed fundamental liberties under Part II of the Constitution, and whether the Bill allowed for the usurpation of the exclusive powers of the Yang di-Pertuan Agong (‘YDPA’) under art 150 of the Constitution.

Close consideration of the Bill reveals that the said concerns are not misplaced. It further becomes evident that, additionally, the Bill violates the Constitution for having been enacted in a manner not countenanced by the same.

This article seeks to support these conclusions by demonstrating that the legislative power under art 74 of the Constitution could not have been justifiably invoked for the enacting of the Bill, or any law of a nature similar to it. It will be shown that key provisions of the Bill infringe Part II of the Constitution, and that Parliament could only enact a law containing such provisions as exceptional legislation under arts 149 or 150(5) of the Constitution. It will also be shown that the effect of the Bill is to unlawfully arrogate powers that are exclusively vested in the YDPA by art 150 of the Constitution to the Executive. Finally, in light of these mattes, it will be argued that the Bill is the product of a colorable exercise of power by Parliament. Read more

Report on the “Human Rights and Religion – Are the two compatible?” Forum – Surendra Ananth

BY SURENDRA ANANTH

lede_restrict1

Introduction

The forum entitled “Human Rights and Religion: Are the two Compatible?”, held on 23 May 2015 , could not have been organized at a more timely moment. At a time where extremism was insidiously sweeping in the Malaysian society and where the supreme law of our land was being challenged in various forefronts, intellectual discourse on such a topic was very much welcomed. The speakers consist of well-known academicians, Professor Emeritus Shad Faruqi (“Prof Shad”) and Dr. Dian Diana Abdul Hamed (“Dr Dian”). The two commentators who were invited to further enrich the discussion were Mr Phillip Koh and Dato’ Malik Imtiaz Sarwar. The discussion was moderated by Dr. Azmi Sharom. Read more