Who does Malaysia belong to?

TO whom does Malaysia belong to may sound like a hilarious question, but do not overestimate the capacity to which the human mind is used.

Experience and observation will tell you that many of us (sometimes me included), often make a choice of not thinking about things based on facts. Instead, we form conclusions based on conjectures and other people’s uninformed opinions.

So who does Malaysia belong to?

There are many ways of approaching this question. As I often tell the audience in my talks about “thinking”, we have to understand the question first before we can even attempt to seek an answer.

Read more at https://www.thestar.com.my/opinion/columnists/through-many-windows/2019/04/28/who-does-malaysia-belong-to/#jy0kGLLpmxOFc5XH.99

Lawyer Tommy Thomas for Attorney General ???

Does the Attorney general need to be a Malay or a Muslim ? Does he have to advise on Syariah law ?

 by GK Ganesan Kasinathan
[03 June 2018]

The nation is trundling towards a calamitous constitutional misunderstanding. Someone has to do something about it and set matters straight.

Let us identify what is happening.

A debate has begun to rage. It concerns the identity of the person who should be the next Attorney General. It is about constitutional provisions regarding what characteristics the Attorney General should have—and whether the current nominee, Mr. Tommy Thomas has them.

Two conflicting ideas

At the heart of the debate are two conflicting statements: the first is the altruistic proposition that certain quarters ‘have no objection at all to a non-Malay being nominated as AG.’ The second is an opposite argument. It is that the AG should be ‘in a position to advise the palace on Syariah matters.’ And the third proposition, being a conclusionary one, is the argument ‘... that therefore a judge, or a retired judge of the Court of Appeal or the Federal Court ought to be appointed as AG.’

These arguments are deeply flawed. Here are the reasons:

These arguments have no constitutional basis at all. In fact, the Federal Constitution says the opposite. Why is that?

The rakyat should be allowed to interpret the Constitution

The rakyat should take part in this debate. They should look at the Constitution and inform themselves of the important aspects of this confusion. They should be taught to interpret the Constitution. It is their right. Lawyers should not be the only ones telling people what the law is.

So let us look at the Constitution.

The starting point is Article 145.

Answer to the claim AG ‘must advise on Syariah law.’

The first and most important opposition to the Administration — and Mahathir — comes from the argument that the ‘AG must be able to advise the King on Syariah matters’. This demand contradicts Constitutional provisions.

This is because the Constitution exempts the AG from such a requirement. You will understand this readily, because the relevant part of Article 145(2), states: -

‘145(2): It shall be the duty of the [AG] to advise the [King] or the Cabinet or any Minister upon... legal matters, and to perform... duties of a legal character,... and to discharge the functions conferred on him by or under this Constitution or any other written law.

So what it says here is that the AG must discharge the duties that the Constitution asks him to. What power does the Constitution give him? That is explained by Art 145(3). It states: -

‘145(3): The [AG] shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.’

Clause 3 prohibits the AG from dealing with proceedings before Syariah Courts and Military Courts. As far as Syariah matters are concerned the AG has no role.

No one would disagree that the King must have the very best Syariah advisor—an expert. Were previous AGs experts on Syariah Law? Was Gani Patail an expert on Syariah law? Was Apandi? How come no one objected then?

So how can the AG be now compelled to perform a duty — or exercise a power — that the Constitution has taken away from him? Why is the AG now being asked to advise on something that the Constitution tells him is none of his business?

The person to advise the King on Syariah law cannot be a retired judge.

The fifth argument is that the nominee for the AG ‘must be either an existing or a retired Federal Court judge or a Court of Appeal judge; for, that way he can render legal advise on Syariah matters’.
This argument is a non-starter.

Again there is a clear instruction from the Constitution on this.

Apart from informing the AG what matters over which the AG has powers to act on, the Constitution goes one step further. Secular courts are non-Syariah courts: i.e. the Magistrate Courts, Sessions Courts, High Court, Court of Appeal and the Federal Courts: [Article 121 defines the secular courts].

The Constitution expressly removes from all secular courts any power that is only a Syariah Court can exercise. Clause (1A) says:-

‘The courts referred to in Clause (1) [read, ‘secular courts’] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.’

The Syariah judicial system works under a different set of laws. They have their own courts, their own judges, and their own lawyers. They are independent of the Judiciary. Therefore if Syariah law advice is needed, their Highnesses have ample Syariah resources at their disposal.

If so, how can candidates be chosen from the retired or existing list of the secular Federal Court or the Court of Appeal judges? From them have been removed the power to deal with Syariah matters. It stands to reason that they, no matter what race or religion they profess, would have had no formal legal training on Syariah law at all. So why ask to choose from a group who possess no Syariah knowledge at all?

So the argument that the AG ‘must be able to advise on Syariah matters’ argument is a red fish! It is simply not true.

What qualities must a candidate for an AG have?

The next question to ask oneself is, who can be appointed as the AG? Article 145(1) answers the question in this way: -

‘145(1): The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.’
Note the phrase, ‘a person qualified to be a judge of the Federal Court’.

Who is that? That is explained in Article 123.

 It prescribes that a nominee for an AG must be (a) a citizen and (b) for the last 10 years before his appointment he shall have been ‘an advocate’; or ‘a member of the Judicial and Legal service’ (this differs from judges in the Courts - do not confuse them as one), or a mixture of both. It does not mean he must be a Federal Court or Court of Appeal Judge. He must only be one who is ‘qualified to be’ one.

From which pool would you choose your AG, given the choice?

As a matter of choice where would you choose the AG to come from?

Let us examine the pool of resources available to the Prime Minister.

Suppose there are about 1,800 lawyers in the AG’s Chambers [AGC]: that is about right. Suppose we assume that at least 500 AGC lawyers in AGC have crossed the ‘10 year practice’ mark (the numbers could be far lower]. Then at least 500 persons qualify to be the AG.

Now, the Malaysian Bar has ten times more lawyers than the AGC. It had, at the latest count, over 18,000 members. Of that number [I extrapolate] there are over 9,000 lawyers who qualify under this Art 123 — they have crossed the ‘10 years of continued practice’ requirement. They are all citizens.
Go now to the judiciary as a source. If you add the total number of judges in the Federal Court and the Court of Appeal that does not cross 45. A great proportion of those judges are from the AG’s Chambers: some say as high as 90%.

As a matter of choice, where would you choose the AG from? From the largest pool of 9,00 members, or a lesser pool of 500 lawyers from AG’s chambers, or from a smaller pool of 45 judges from the Judiciary— the latter of which is already under attack?

Equality of all candidates not matter of race

The sixth point is, the Constitution, which upholds equality as its central core (read Article 8 of the Constitution), does not prevent a non-Malay from being appointed an AG. If our forefathers thought it necessary, they would have inserted that proscription into the Constitution. Had they done it, that would have been against all known conventions of human rights. They have not. Our forebears were reasonable people. They saw this issue and catered for it. The framers of the Constitution were men of great foresight. So why manipulate that intent by specious arguments of non-existent ‘conventions,’ conventions which are against human rights?

So there is no racial restriction in the Constitution. So that argument too goes out of the window.

The King ‘shall appoint’

Clause (1) of Article 145 states that His Majesty the King ‘shall’ on the advice of the Prime Minister, appoint as AG a person proposed by the Prime Minister.

This is what it says: -

‘145(1): The yang di-Pertuan Agong shall, on the advice of the prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.’
Note the word, ‘shall’. It is mandatory.

The binding nature of the Prime Minister’s proposal is buttressed by an explanatory clause in Art. 40(1A): It says:-

‘In in the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.’

The phrase ‘shall accept and act in accordance with such advice’ points to a mandatory requirement. There is a reason for this. The functioning of a valid government cannot be stultified by delay.
The Manifesto Point

The seventh argument is: ‘In appointing a non-Parliamentarian, Mahathir has departed from the Harapan manifesto that the AG shall be an MP.’

Many points answer this vacuous argument. The manifesto point is readily overcome.
Second, I have said elsewhere, the AG ought to be an MP answerable to the people, through parliament. I have suggested that the Constitution ought to be changed to effect that. The Committee for Institutional Reform is engaged in just that. Like the Council of Eminent Persons, they have had no rest. They are burning the candle at both ends. They are inundated with all manner of papers. They will suggest amendments—in good time.

But until that change is done, the law, as it stands, must be complied with. There is no countervailing argument against that. There is, fortunately, a Half-Way House solution. It is embedded into the Constitution. Art. 61 of the Constitution, which states, ‘(2) Either house of parliament may appoint as a member of any of its committees the [AG]... notwithstanding that he is not a member of that house.’ So, through this side-door, Parliament may, after it convenes, ask the AG to be appointed into its committees. The Committees may ask him to answer questions. In this way the current AG can be brought into Parliament’s deliberations. So these concerns are easily alleviated. So any allegation that ‘Harapan has breached its Manifesto’ is really no issue at all.

Parliament has a right to override the King on executive matters.

The King has executive authority over the Federation. That authority is, however, not absolute. It is subject to the dictates of Parliament: this is because Art 39 states:

‘The executive authority of the Federation shall be vested in the yang di- Pertuan Agong and exercisable... by him or by the Cabinet or any Minister authorised by the Cabinet, ... but parliament may by law confer executive functions on other persons.’

The AG's appointment, under the current law, is an exercise of executive authority. If the King does not act on the advice of the Prime Minister, the Constitution grants another route to Parliament. In matters of governance, the primacy Parliament is constitutionally entrenched. But Parliament has not been convened. That that time is not yet come. It will. But can we wait till then?
The power of the Conference of Rulers

The final argument in the opposition’s quiver is that the Conference of Rulers have an
absolute power to object to any suggestion of the Prime Minister. This is incorrect. True
it is that the Conference of Rulers have certain ‘discretionary’ powers.

Article 38 lays it out in great detail. They have a right to be consulted on certain matters. These are listed with some care: these deal with matters relating the appointment of the King, e.g., include any matter relating to the special position of the Malay rulers, the Islamic religion or the rights of Malays under Article 153 (Reservation of quotas in the services, permits etc. for Malays).

True also it is that that Art. 38(2)(c) states that the Conference of Rulers shall exercise its functions of consultation by —

‘... consenting or withholding consent to any law and making or giving advice on any appointment which under this Constitution requires the consent of the Conference or is to be made by or after consultation with the Conference’.

Some argue that Clause(6) gives the Conference of Rulers the right of carte blanche— blank cheque; that that it is ‘an absolute right’. This is what the relevant part of Clause(6) says —

‘... the members of the Conference of Rulers may act in their discretion in any proceedings relating to the following functions, that is to say... (c) consenting or withholding consent to any law and making or giving advice on any appointment which under this Constitution requires the consent of the Conference or is to be made by or after consultation with the Conference;

In constitutional theory, the personal prerogative of the monarch is said to contradict democracy.
On a proper reading of Clause 6, this personal power is not absolute. First, much of the strength of these prerogative power are diluted by constitutional principles. Second, other clauses in the Constitution severely limit that power. Third, the ‘right to consultation’ cannot mean an ‘absolute right to refuse.’ That is why the Constitution, with great care, has said, their Highnesses ‘may act in their discretion.’ This discretion is called ‘royal prerogative.’ Blackstone described it as the powers that ‘the king enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.’ So they are are ‘personal prerogatives.’

But the principles underlying the exercise of prerogatives have been uniformly accepted without contradiction across the world. It is for that reason such prerogatives are carefully circumscribed. The way the words in clause 6 are crafted is a call to exercise, in their Highnesses discretion, one of the most fundamental provisions of the Rule of Law: when a constitutional discretion is granted, it cannot be exercised arbitrarily. So the exercise of the ‘personal prerogative’ must seek to achieve the equality principle rooted as the basic fabric of the Constitution. It must be subject to transparency and good governance. It cannot be exercised arbitrarily. It cannot be exploited capriciously. Such a discretion must be exercised in a way that will aid democracy and uphold the Rule of Law. The words must be construed to comply with the spirit of the Constitution and the Will of the People.

Conclusion

Parliament is not in session. Not yet. Yet someone has to carry the burden of the AG. Charges have to be filed. People have to be hauled up before the courts. The Cabinet is busy answering a hundred, perhaps a thousand urgent calls upon its time. This amidst the urgent concern that economic matters should be dealt with alacrity.

Manifesto or no, Mahathir has to stop the haemorrhage. The Cabinet cannot hang about. Time is of the essence. Mahathir has to act now.

Those who delay the appointment of the AG are doing a great disservice to the toils of an elderly patriot trying to right a wayward ship.

These detractors are playing into the hands of the pilferers who have purloined billons from our coffers. They sit pretty, smiling from their strongholds. They think nothing will come upon them so long as they keep raising one constitutional crises after another, and trigger as much unease and delay as possible. That is why they are delaying the appointment of the AG. They wish to feel safe. They think the GE 14 is a pyrrhic victory. They feel they are untouchable.

They must be stopped.

As a nation we cannot sit idly by, while these detractors stultify the rakyat’s hard-won victory.
.
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GK Ganesan Kasinathan is a senior advocate  and solicitor practicing in Kuala Lumpur.

Perdebatan Hukum Hudud Di Dewan Rakyat 2014

Apa pandangan pembaca?

Ada kah isu2 yang relevan di bincang atau berkisar pada fahaman dan tetapan sarjana2 ?

Salam.

Rapera Reviews 2013 on various issues with Dr Azmi Sharom

You can click on the link here :

http://www.mobtv.my/talkshow-4557.html

Peace !

Najib's call for Unity - What Unity?

I fully support the Prime Minister Najib Tun Razak's call for unity recently. Everyone knows the outcome of disunity and enmity among humankind. It results in chaos and misery.

The "Islamic world" is known from almost time immemorial to be characterised by disunity and enmity. There are several reasons, among which are vested interest, sectarian differences, and intolerance of differing views.

The Middle East is a hotbed of conflicts, oppression of human and individual rights, dictatorial regimes and corruption. The Middle East is a living example that common language and religion alone cannot unite the people. A sense of humanitarian values and the willingness to adhere to basic universal values of Islam is equally necessary.

One cannot be faulted to say that the Middle East may be full of religion but largely lacking in spiritualism. So much form but little substance. Too much emphasis on form breeds hypocrisy and Allah condemns hypocrisy as a most evil trait. Let us come closer to our own home - Malaysia.

Malaysian Muslim political leaders often deliver speeches calling for unity of the ummah especially during so-called religious festivals. Any Muslim will welcome such calls. However, a call for unity which is not accompanied by consistent programs and deeds towards the call is useless. It portrays the leader as a man of form and not of substance. The leader becomes an insult to the people.

Even worse is when a leader calls for unity and yet he condones or does every act that further perpetuates disunity. This is hypocritical and despicable in the eyes of Allah.

I believe that calls for unity in Malaysia among the Muslims is not totally genuine. It is merely a political call. If it was genuine, Muslims will accept Muslim wholeheartedly in all spheres of their lives. Only recently, a christian Indian converted to Islam and the registration department found it completely important that his race column be written as "keturunan India" - is this necessary? Where is the implementation of the principle that Islam supersedes race? where is the implementation of article 160 of the Federal Constitution that this Indian Muslim is now a constitutional Malay? Why are civil servants allowed to override the clear provisions of the Constitution?

I have many experiences with converts (Chinese, Indian, Orang Asli) into Islam from other races. The convert still is treated as a non-Malay despite the constitutional guarantee that he is a Malay upon conversion and fulfillment of the article 160 of the Constitution. Further, over the years, I have come across cases where quite a number of Penang Malays who have their name changed from "bin" to "a/l" in their nric without their knowledge by the civil servants. Why is this done? Has "bin" become the domain of the Malay and where is this "ukuwaah Islamiah" that many political and religious leaders are so fond of talking about?

There are so many real life examples that I can show to prove that we are still far away from this "Islamic unity" in the country. Political leaders make speeches without serious follow ups and the ignorant civil servants do what they wish. Thereafter, everyone goes to the Friday prayers pretending that all are united.

Let us not play with God for His wrath is unimaginable.

Peace!

MAIS, Khalid Samad and the right to speak on Islam

The recent spate of events concerning MAIS and YB Khalid Samad raises interesting and important issues. It is reported that MAIS is acting against Khalid Samad for "talking" on Islam in the mosque without permission from MAIS. 

The MalaysianInsider reports that "Khalid was charge under Section 119 of the Selangor Islamic Religious Administration Enactment for giving a sermon in a surau at Taman Seri Sementa, Kapar in Klang on August 16 without prior permission". Apparently Khalid Samad is going to challenge this on the basis that it is unconstitutional.

I can understand and support the fact that allowing politics to dominate "places of worship" can be dangerous and even develop into a security threat. In fact I strongly hold the view that there should not be any politicisation of any religion. In our conutry, I feel that there has been too much politicisation of Islam to the point that "true Islam" has been given a backseat. I have written on the politico-Islamisation process in Malaysia in my book "Rapera: Urgently wanted" .You only need to look around the world to see and appreciate the poisonous mix of religion and politics on society.

Having said the above, the right of a Muslim citizen to speak his views on his faith is another matter altogether. I have written on this quite comprehensively here when Datuk Dr Asri was faced with a similar predicament.

The issues will go back to the Federal Constitution, the State Laws on Syariah and the Quran. 

Article 11 (1) is often quoted by many Muslims to defend their right to practice and profess their religion as this article clearly gives them that freedom subject to artcile 11(4) of the Federal Constitution. 

Art 11 (4) provides that state and federal laws may control or restrict the propagation of any religious beliefs or doctrines among persons professing the religion of Islam. As I have written before, this could very well be interpreted to mean even a Muslim may be restricted to propagate Islamic doctrines and beliefs to another Muslim or group of Muslims? Possibly the “correct” interpretation is that only authorized persons can propagate “Islamic beliefs and doctrines” to Muslims citizens.

If this is the interpretation that the courts adopt, then, the State Laws that require anyone to obtain permission from them before "propagating" Islam to Muslims may very well be in line with the Constitution!

Think about it.

Peace.

Is “politico-Islamisation” a threat to the Muslim Faith? – Part 4 and Final:

In the last posting, I concluded by stating that it is important to understand the link between the religious laws – politics – Islamic scholars. Each of these factors need in-depth study and analysis in order to fully understand how it impacts on the personal liberty of the Muslim citizen to practice and profess his faith of Islam.

Briefly on the issue of “religious laws” – questions such as why certain laws are passed (in the light of the diverse opinion on these laws in Islamic jurisprudence and opinion of scholars), why the diversity of sentences, is there unanimity of consensus on these laws, how is unanimity defined and the basis thereof, how does it impact on personal accountability principle enshrined in the Quran, are they consistent with the principles in the Quran and authentic Sunnah or are they customized Arabian and Persian laws derived from their respective law makers or jurists, etc, etc. All these questions and more need to be asked.

Briefly on the political aspect – should political parties be allowed to claim for themselves to be the champions of Islam and hence position themselves as the sole interpreter of Islam, should Islam be politicized at all or would a “secular situation” be more feasible for a Muslim to practice his faith without political interference, does the political climate favour a “certain flavour of Islam” as opposed to another, are we not concerned that “political Islam” will, one day create the kind of “intra-religious tensions” that is seen happening in the Middle East, Pakistan and elsewhere, etc etc

Briefly on the “Islamic scholars” – Should Islamic scholars opinions be regarded as infallible and hence cast in stone, which school of thought does the scholar belong to and does the ordinary citizen have the constitutional right to evaluate which scholar he agrees with, political participation of Islamic scholars and their objectivity, “competition” between Islamic scholars of differing views, “Non-Islamic” scholars are allowed to express their views in any State in their respective field of study, does the Islamic scholar has this same right, etc, etc.

As I had observed earlier, it is indeed a complex web beyond the imagination of the ordinary Muslim citizen who unsuspectingly often accepts matters at face value, especially those that are deemed “official” or “normal”.

The web becomes more complex to the point of being confusing to many because of other factors. In this politico-Islamisation process, there are also other “political” units involved as shown in the diagram below. Each of them impact upon the Muslim citizen’s right to practice and profess his faith. If you study the diagram, you will see clearly that the political framework in Malaysia is designed to exert control over the Muslim citizen in a way that that does not affect the Non-Muslim citizens.

Politico-Islamisation Process in Malaysia

!

1.   Politicians & Ngos      2. State Religious Council     3.Federal “Islamic Institutions    4.. State Religious Authorities  5. Religious Scholars 6.????   

                         
Article 11(1) of the Federal Constitution provides that ‘Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it”.

Since a Muslim citizen is subjected to the many units discussed above, it would appear that Article 11(1) is not available to the Muslim citizen. This is because the right of the Muslim citizen to practice and profess his faith is subjected to the control of the above units. These units have the force of law and hence, Muslim citizens’ rights to avail themselves of the right provided under Article 11(a) are illusory. His faith is therefore curbed by man-made laws.

It is a also a sad fact that many Judges, nothing less than Federal Court Judges have shyed away from their responsibility to interpret Article 11(1) vis-à-vis the Muslim citizen’s right though they had ample opportunity. This is something they have to answer to their own conscience and to the Maker when they ultimately face Him. When such judges refuse to undertake their responsibility in matters that concerns one’s faith, how difficult it will be for a Muslim to respect such judges (not all of them)? If my reasoning is correct (and I stand to be corrected), they are part of the oppression of faith.

As it stands, realistically Article 11(1) is not applicable to the Muslim citizen while it is applicable to the non-Muslim citizen. This brings about another constitutional discrimination against the Muslim citizen.

Article 8 of the Federal Constitution provides that:

8(1) All persons are equal before the law and entitled to the equal protection of the law.
8(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

In the light of the political structure of our country in terms of the religious institutions, not all persons are equal before the law. Since, Article 11(1) is available to the non-Muslim citizen and not the Muslim citizen; it would appear that the non-Muslims have more rights than the non-Muslims with regards to how they practice their faith.

Furthermore, it is arguable that the Muslims are being discriminated against in contravention of Article 8(2) because there is nothing in the constitution that allows any authority to curb the freedom of a Muslim to practice and profess his faith.

Article 11 (4) states the following:

“State law and in respect of the Federal Territories of Kuala Lumpur and Labuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam”.

Article11(4), on the face of it applies to every citizen, whether Muslim or non-Muslim. This means that laws can be enacted to curb the Muslim’s duty to “propagate” Islam to others, including his own family. This article may be troublesome, unless properly clarified, because there are just too many injunctions in the Quran that places a divine duty to share Allah’s message with anyone who is willing. One such verse is very clear as follows:

"Call them to the path of your Lord through wisdom and good advice and argue with them in the best manner. God knows well about those who stray from His path and those who seek guidance". (Quran 16:125)

How does a Muslim call others to the path of Allah if his divine right and duty to share the verses from the Quran (and his understanding thereof) can be curbed by law? This is a serious matter which the law-makers must address.

I believe everyone, when they are alone, knows the answer. God “speaks” to all and has given each a conscience – but politics has become god.

END.

Peace.

[I appreciate alternative views and comments as my concern is sincere]

Hak Melayu terhakis? – Bab Dua.

Perkara 153 Perlembagaan Persekutuan

Sebelum saya mulakan perbincangan mengenai Perkara 153 yang kita sering dengar hari ini, elok jika saya turunkan keseluruhan peruntukkan itu untuk tatapan dan fikiran pembaca dahulu. Melalui cara ini, mudah untuk pembaca ikuti perbicangan saya nanti.

Berikut adalah penyataan penuh Artikel 153 Perlembagaan Malaysia.

Perkara 153. Perizaban kuota berkenaan dengan perkhidmatan, permit, dsb. bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak.
(1) Menjadi tanggungjawab Yang di-Pertuan Agong untuk melindungi kedudukan istimewa orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak dan kepentingan sah kaum-kaum lain mengikut peruntukan Perkara ini.

(2) Walau apa pun apa-apa jua dalam Perlembagaan ini, tetapi tertakluk kepada peruntukan Perkara 40 dan peruntukan Perkara ini, Yang di-Pertuan Agong hendaklah menjalankan fungsinya di bawah Perlembagaan ini dan undang-undang persekutuan mengikut apa-apa cara yang perlu untuk melindungi kedudukan istimewa orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak dan untuk memastikan perizaban bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak apa-apa perkadaran yang difikirkan munasabah oleh Yang di-Pertuan Agong daripada jawatan dalam perkhidmatan awam (selain perkhidmatan awam sesuatu Negeri) dan daripada biasiswa, danasiswa dan keistimewaan pendidikan atau latihan yang seumpamanya atau kemudahan khas lain yang diberikan atau diadakan oleh Kerajaan Persekutuan dan, apabila apa-apa permit atau lesen dikehendaki oleh undang-undang persekutuan bagi mengendalikan apa-apa pertukangan atau perniagaan, maka, tertakluk kepada peruntukan undang-undang itu dan Perkara ini, daripada permit dan lesen itu.
(3) Yang di-Pertuan Agong boleh, bagi memastikan, mengikut Fasal (2), perizaban bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak jawatan-jawatan dalam perkhidmatan awam dan biasiswa, danasiswa dan keistimewaan pendidikan atau latihan atau kemudahan khas lain, memberikan apa-apa arahan am yang dikehendaki bagi maksud itu kepada mana-mana Suruhanjaya yang baginya Bahagian X terpakai atau kepada mana-mana pihak berkuasa yang dipertanggungkan dengan tanggungjawab bagi pemberian biasiswa, danasiswa atau keistimewaan pendidikan atau latihan atau kemudahan khas lain itu; dan Suruhanjaya atau pihak berkuasa itu hendaklah mematuhi arahan itu dengan sewajarnya.

(4) Pada menjalankan fungsinya di bawah Perlembagaan ini dan undang-undang persekutuan mengikut Fasal (1) hingga (3) Yang di-Pertuan Agong tidak boleh melucutkan mana-mana orang daripada apa-apa jawatan awam yang dipegang olehnya atau daripada terus mendapat biasiswa, danasiswa atau keistimewaan pendidikan atau latihan atau kemudahan khas lain yang dinikmati olehnya.

(5) Perkara ini tidaklah mengurangkan peruntukan Perkara 136.

(6) Jika menurut undang-undang persekutuan yang sedia ada suatu permit atau lesen dikehendaki bagi mengendalikan apa-apa pertukangan atau perniagaan, maka Yang di-Pertuan Agong boleh menjalankan fungsinya di bawah undang-undang itu mengikut apa-apa cara, atau memberikan apa-apa arahan am kepada mana-mana pihak berkuasa yang dipertanggungkan di bawah undang-undang itu dengan pemberian permit atau lesen itu, sebagaimana yang dikehendaki untuk memastikan perizaban apa-apa perkadaran daripada permit atau lesen itu bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak sebagaimana yang difikirkan munasabah oleh Yang di-Pertuan Agong; dan pihak berkuasa itu hendaklaah mematuhi arahan itu dengan sewajarnya.

(7) Tiada apa-apa jua dalam Perkara ini boleh berkuat kuasa untuk melucutkan atau memberi kuasa supaya dilucutkan apa-apa hak, keistimewaan, permit atau lesen mana-mana orang, yang terakru kepada orang itu atau yang dinikmati atau dipegang oleh orang itu atau untuk memberi kuasa untuk menolak pembaharuan mana-mana permit atau lesen mana-mana orang atau untuk menolak pemberian apa-apa permit atau lesen kepada waris, pengganti atau penerima serah hak seseorang jika pembaharuan atau pemberian itu mungkin semunasabahnya dijangkakan mengikut perjalanan biasa keadaan.

(8) Walau apa pun apa-apa jua dalam Perlembagaan ini, jika menurut mana-mana undang-undang persekutuan apa-apa permit atau lesen dikehendaki bagi mengendalikan apa-apa pertukangan atau perniagaan, maka undang-undang itu boleh membuat peruntukan bagi perizaban apa-apa perkadaran daripada permit atau lesen itu bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak; tetapi tiada undang-undang sedemikian boleh, bagi maksud memastikan perizaban itu-

(a) melucutkan atau memberi kuasa supaya dilucutkan apa-apa hak, keistimewaan, permit atau lesen mana-mana orang, yang terakru kepada orang itu atau yang dinikmati atau dipegang oleh orang itu; atau
(b) memberi kuasa untuk menolak pembaharuan mana-mana permit atau lesen mana-manaa orang atau untuk menolak pemberian apa-apa permit atau lesen kepada waris, pengganti atau penerima serah hak mana-mana orang jika pembaharuan atau pemberian itu mengikut peruntukan yang lain dalam undang-undang itu mungkin semunasabahnya dijangkakan mengikut perjalanan biasa keadaan, atau menghalang mana-mana orang daripada memindahkan hakmilik bersama dengan perniagaannya apa-apa lesen yang boleh dipindahkan hakmiliknya untuk mengendalikan perniagaan itu; atau
(c) jika tiada permit atau lesen dahuluya dikehendaki bagi mengendalikan pertukangan atau perniagaan itu, memberi kuasa untuk menolak pemberian permit atau lesen kepada mana-mana orang bagi mengendalikan apa-apa pertukangan atau perniagaan yang telah dijalankan olehnya secara bona fide sebaik sebelum undang-undang itu mula berkuat kuasa, atau memberi kuasa untuk menolak pembaharuan kemudiannya mana-mana permit atau lesen mana-mana orang, atau untuk menolak pemberian mana-mana permit atau lesen sedemikian kepada waris, pengganti atau penerima serah hak mana-mana orang itu jika, mengikut peruntukan yang lain dalam undang-undang itu, pembaharuan atau pemberian itu mungkin semunasabahnya dijangkakan mengikut perjalanan biasa keadaan.

(8A) Walau apa pun apa-apa jua dalam Perlembagaan ini, jika di dalam mana-mana Universiti, Kolej dan institusi pendidikan lain yang memberikan pendidikan selepas Malaysian Certificate of Education atau yang setaraf dengannya, bilangan tempat yang ditawarkan oleh pihak berkuasa yang bertanggungjawab bagi pengurusan Universiti, Kolej atau institusi pendidikan itu kepada calon-calon bagi apa-apa kursus pengajian adalah kurang daripada bilangan calon yang layak mendapat tempat-tempat itu, maka adalah sah bagi Yang di-Pertuan Agong menurut kuasa Perkara ini memberikan apa-apa arahan yang perlu kepada pihak berkuasa itu untuk memastikan perizaban apa-apa perkadaran daripada tempat-tempat itu bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak sebagaimana yang difikirkan munasabah oleh Yang di-Pertuan Agong; dan pihak berkuasa itu hendaklah mematuhi arahan itu dengan sewajarnya.

(9) Tiada apa-apa jua dalam Perkara ini boleh memberi Parlimen kuasa untuk menyekat perniagaan atau pertukangan semata-mata bagi maksud perizaban bagi orang Melayu dan anak negeri mana-mana antara Negeri Sabah dan Sarawak.

(9A) Dalam Perkara ini ungkapan “anak negeri” berhubung dengan Negeri Sabah atau Sarawak hendaklah mempunyai erti yang diberikan kepadanya dalam Perkara 161A.

(10) Perlembagaan Negeri yang ber-Raja boleh membuat peruntukan yang bersamaan (dengan ubah suaian yang perlu) dengan peruntukan Perkara ini.

Salam

Can Islamic issues be discussed without the permission of the religious authorities?

Dr Mohd Asri’s recent debacle with Jais has raised very pertinent questions for the Nation as a whole. Initially reports seem to suggest that his dramatic arrest (there were almost 30 police personnel and Jais officers) concerns him delivering a lecture on Islam without a “tauliah”. For all practical purposes, a “tauliah” will denote permission from the relevant religious authorities to lecture on “matters Islamic”. This need for permission from religious authorities before someone can speak on Islamic matters raises serious issues.

1. Firstly, the impact on an ordinary Muslim’s right and duty to share and exchange views on Islam. It is every Muslim’s duty to call people towards the performance of good deeds and the avoidance of evil deeds. This duty will necessarily involve a Muslim speaking from his Muslim perspective and from his understanding of the Quran and Sunnah. It will appear from the arrest of a former Mufti for purportedly giving his views on Islamic issues that prior permission must be obtained from the religious authority before any Muslim wants to express his views on Islam. There is now this confusion and concern among the Muslims in the country.

The ordinary Muslim is not aware that there is a need to obtain prior permission from the religious authorities before they can share their views on Islam or engage in a discussion on Islamic issues. If indeed this permission is required under the State syariah laws, several other questions may arise. What are the criteria of approval or is it merely arbitrary? Who decides the criteria on behalf of the millions of Muslims in this country? Will this impinge on the Muslim’s duty to practice his Muslim obligations without fear or favour? If at all the Muslims in this country feel that there must be control over the Muslim’s right of expression, then surely there must clear and publicized set of guidelines/rules?


2. Secondly, it also raises concerns whether academics, bloggers, columnists and such will now be subjected to the requirement that they must first obtain prior approval from the religious authorities before they can express their views and thoughts. Again, one needs to consider whether such a requirement will in the long run stifle academic and intellectual development in Islamic thought since the ones who are going to determine whether permission should be granted or not are paid civil servants. There is also the issue of mazhab preference and issue-centric preference. What will happen if the “approval person” of the day is not inclined to the thoughts of a particular mazhab? This will result in the general public not benefiting from the knowledge.

3. As a result of point (2) above, we have to seriously consider the impact on the growth and development of Islamic thought in the country. It is a real possibility that control over the expression and discussion of diverse views on Islam will lead to the existence of only one mode of thinking and state of mind which need not necessarily be consonant with the principles of the Quran and the Sunnah. If laws and state apparatus are used to control the ordinary Muslim’s mind, then who is to question whether what is stated is indeed consistent with the Quran and the Sunnah? Under such a regime, any sincere effort to invite alternative thinking and to consider alternative interpretations will become a state offence.

4. Thirdly, one has to ask what is the role of the Federal Constitution in all these. Article 10 (1) of the Federal Constitution guarantees freedom of speech and expression to all the citizens subject only to such restrictions as Parliament may pass pursuant to Article 10(2). It is arguable that requiring a Muslim to seek permission from the State before he can speak or write on his own religion is an infringement of his constitutional rights so long as they do not offend the provisions under Article 10 (2).

5. Fourthly, Article 11 (1) guarantees that, subject to clause (4), every citizen has the right to practice and profess his religion. Surely this right must also extend to the Muslim citizen to profess and practice his religion. Surely the Muslim also has equal protection (Article 8) and rights under the law as the non-Muslims? However, while the non-Muslim does not have to seek prior approval to organize talks or seminars with regards to his religion, the Muslim citizen appears to have this added hurdle to cross in order to exercise his rights under Article 10 and Article 11 (1). Is this constitutional? Is this legal? I will not ask the question if this hurdle is consistent with the Quran since it is not (my humble view – stand to be corrected).

6. Fifthly, this Dr Asri episode also requires us to visit and understand article 11 (4) of the Federal Constitution. Art 11 (4) provides that state and federal laws may control or restrict the propagation of any religious beliefs or doctrines among persons professing the religion of Islam. All this while, many lawyers I have spoken to have usually interpreted this to refer to the propagation of other religions to Muslims. However, the word used in the constitution is “any” religion and in the “Islamic world” there are diverse views even though the basic belief is the same. Hence, on these two facts coupled with Dr Asri’s episode, will it not be correct to say that Article 11 (4) may be interpreted to mean that even a Muslim may be restricted to propagate Islamic doctrines and beliefs to another Muslim or group of Muslims? Possibly the “correct” interpretation is that only authorized persons can propagate “Islamic beliefs and doctrines” to Muslims citizens. In other words, “state determined Islam” which will therefore be largely dependant on “who (person/individuals) is the real ‘state’ at the particular time”. Mind boggling? Yes, this is what happens when you legislate faith!

I welcome comments on the above article as I think it has immense far reaching implications not only on the issues of law but also on the position of the Muslim as being a servant of Allah.

Peace !