Sunday 4 May 2014

The Ambiguity of Federal Constitution and Reluctance of Judiciary to Protect Religious Freedom of Minorities

The Ambiguity of Federal Constitution
and Reluctance of Judiciary to Protect 
Religious Freedom of Minorities

~ P. Waytha Moorthy ~

[Editor’s note] This article is full text written by Mr. P. Waytha Moorthy, Chairman of HINDRAF, who is also a lawyer specially for "Krisis perkataan Allah • Hak berperlembagaan • Kebebasan beragama" forum jointly organised by Sahabat Rakyat Working Committee and Lajnah Perpaduan Nasional (LPN) PAS Johor held on 4 May 2014 at Auditorium JOTIC, JB.

Malaysia takes great pride in being a melting pot of different cultures, races and religions, co-existing under a secular sphere.

Nevertheless, the vibrant development of human rights awareness and advocacy throughout the past decade introduced an additional element into the dynamics of pluralism in the country. Human rights have become standard talking points even amongst those in the vanguard of cultural, political, and religious conservatism.

In Malaysia, race and religion are important, interconnected issues, that has been longstanding and of lately continues to be a hot debate due to conflict between what is clearly stated in the Federal Constitution and how the laws of the nation are being promulgated. There is reluctance at least in the public domain—to openly debate these matters through the pretext of protecting multiethnic sensitivities.

However, several cases invoking the constitutional right to religious freedom have been brought to the public eye and caused considerable uproar in our nation. They include, but are not limited to, apostasy, religious conversions, custody and acceptance of non-mainstream religious doctrines. These cases raise pertinent questions about the boundaries of religious freedom for Muslims and non-Muslims alike, especially when pitted against considerations for religious rules, societal norms, and the grander idea of collective social responsibility and national stability that is embedded in the Federal Constitution.

Looking at the International level, the Universal Declaration of Human Rights (1948) (UDHR) and the International Covenant of Civil and Political Rights (1976) (ICCPR) represent two important documents that are intended to safeguard freedom of religion. According to Article 18 of the UDHR:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Universal laws of human rights apply to all regardless of their religion, and nation/ states cannot deny the duties of humanity on the mere basis of religious differences.

The Malaysian constitutional framework enacted in 1957 came about after the UDHR therefore the intention of the provision in the UDHR would have been extensively considered by the drafters, more so being for a heterogeneous community.

To conceptualize freedom of religion in Malaysia, it is important to understand several provisions of the Constitution. First, although the Malaysian legal system modeled after the Westminster system, it is often taken for granted that there is a written Constitution in place. The Constitution, according to Article 4, is the supreme law of the land. It is at the apex of the legal hierarchy, so any Acts of parliament to the contrary may be deemed unconstitutional.

The framers of the Federal constitution understood the secular state of the nation therefore created secular law and governance system but however made provisions for Islam to coexist bearing the treaties between the Malay rulers and the English masters to confine it as a personal law amongst the Muslimats of the country without infringing into the rights of non-muslim.

Article 11 of the FC seeks to define and guarantee the constitutional right to freedom of religion of all individuals in a complex multiethnic and multireligious society such as us. Article 11 is also bolstered by other constitutional provisions.

First, to combat subversion, Article 149 permits the enactment of laws which would otherwise be inconsistent with selected fundamental rights such as freedom of speech or personal liberty. However, it does not permit any encroachments on religious freedom.

Second, even if a state of emergency is declared, any emergency laws enacted thereafter cannot curtail freedom of religion.

Third, Article 8 prohibits discrimination on the grounds of religion against public sector employees; in the acquisition or holding of property; and in any trade, business or profession. It is also notable that freedom of religion is in no way affected by Article 3’s establishment of Islam as the religion of the Federation.

Further Article 3(4) states that nothing in Article 3 shall derogate from any other provision in the Constitution.

Despite such clear constitutional grounding for religious freedom in the Federal Constitution, the issues remains challenged especially for Non-Muslim community in Malaysia.

There are major salient issues affecting Non-Muslim in our nation of late since the amendment to Article 121 of the Federal constitution since 1988.

The inclusion of new clause (1A) into Article 121 that stated: “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”

The above clause has initiated the reluctant of the civil court to provide relief or remedies to Non- Muslim community which extends to marriage, child custody, guardianship, alimony, burial, inheritance, succession, purported apostasy etc.

In a marriage life, a non-Muslim’s marriage life is severed on the mere fact that the other spouse converts into Islam. Here one is totally deprived from one’s parental rights as well as one’s maintenance, alimony from the convertee because the Syariah Court has declared so as well as the Non Muslim to obtain any relieve from the said court.

The only solution is to seek recourse through the civil court and even this is shut down without any remedies as the judges are prone to act with their hands off attitude while merely skirting with mere technicality.

In custody and guardianship although basic definition for defining custody and religion of the minor is governed under Article 12(4) of the Federal Constitution & Sec 5 Guardianship of Infant Act 1961 whereby consent of both parent are required, this has been totally hijacked by the reluctant of the civil court to stand a firm stand on the civil rights of the aggrieved Non-Muslim party.

The argument of parent meaning singular does not hold any water as the Interpretation Act 1948 & 1967 clearly indicates otherwise and further The term parent in Art 12 (4) must necessary means both the father and mother. To construe otherwise would mean depriving, for example, a mother of her rights as a parent to choose the religion of the infant under Art 12 (4), if the father alone decides on the religion to be followed by the infant would invariably mean depriving the other of the constitutional right under the Federal Constitution

Further the Interpretation Acts of 1948 and 1967 which generally apply to all Acts of Parliament, state that words in the singular shall include the plural, then the Constitution ought to have been interpreted in the like manner.

How and where does the Syariah court acquire such arbitrary power in contrary to the FC to decide in divorce or custody matters where the Non- Muslim party’s natural rights are denied when the civil court is unable or unwilling to provide any solution to the Non-Muslim party even when the marriage came into force by way of the Law Reform (Marriage and Divorce) Act 1976.

Only Civil High Court has the jurisdiction and powers to dissolve a marriage solemnized under the Act of 1976 and further any obligation of the converting spouse to Muslim are not vitiated in any way as provided in the provision of Section 51(2) of the Act of 1976.

In enacting section 51 of the of 1976 Act, the legislators must have had in mind to give protection to non-Muslim spouses and children of the marriage against a Muslim convert because it would result in grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts if the High Court no longer has jurisdiction since the Syariah Courts do not have jurisdiction over non-Muslims.

By not applying such lucid and clear laws, the civil court judges continue to abdicate their duties to uphold the Non-muslim’s constitutional rights to equality and freedom of religion as entrenched in our constitution.

All aggrieved Non- Muslim community especially in legal tussle with converted Muslim partners exposes them to a legal lacuna on jurisdictional propriety where the Syariah law appears to have the upper hand to conveniently curtail rights constitutionally granted with the ineffective of the civil courts.

The civil courts, government and the lawmakers fail to heed that any state legislative lists of power such as the Syariah court are subordinate to fundamental rights of the Constitution. The continuous side-stepping by the civil courts in an area as important as the constitutional right to religious freedom renders the issue uncertain. It is also frustrating for citizens who resort to the highest court in the land to uphold their rights, only to see the judges to shy away from their responsibility.

Amongst the political organs, there is a lack of consensus not only on what the doctrine means, but also whether it is tenable at all given continues infringement of the Non-Muslim community without a remedy.

It is worth emphasizing that the basic responsibility of a State is to safeguard and prevent encroachments on the freedom of religion for all citizens not just the Muslims. The problem in Malaysia, however, is the ostensibly the overzealous arbitrary approach by the Syariah courts and the reluctance of the civil courts to make a forceful stand to protect Non- Muslim citizens of their fundamental rights as embedded in the Federal Constitution.

Malaysia is represented by at least 45% of the population of other faiths besides Muslim. The important question one needs to address is the line between maintaining social stability and securing individual rights of religious practice and freedom of religion. This needs to be reevaluated where the politicization of the Muslim rights over the Non-Muslim citizens and fear mongering has had considerable effect on defining the parameters of the fundamental rights afforded to the citizen by the Constitution.

The restriction on rights and remedies of others due to more political insecurity by steamrolling personal law such as Syariah laws over the Federal Constitution cannot be tolerated if we are to uphold human rights and respect religious convictions.

Religious belief and human rights are complementary expression of similar ideas, although the former invokes duties rather rights. The duties are of personal nature not an overriding status when it starts to affect other communities and their belief. The rights for the community such as us from different religious belief lie in the Federal Constitution and not in a superimposed position of the Syariah court where its assertion are grounded upon highly conservative and counter-progressive conception against the aggrieved Non- Muslim in such cases as marriage, custody, inheritance, etc.

Religious issues in a plural society such as Malaysia must be open to debates by all sections of the community. Sensitivities can only be resolved through civilized deliberation and dialogue between races in which decision must be reached in consensus and compromise.

While concerns of social stability are understandable, actions must be reasonable and not at the expense of basic human right and dignity.

If there are genuine concerns about a pandemic of conversions and apostasy in a particular religion, then the root cause of the problem should be examined, and not by the simplistic solution of curtailing rights of others for political expedience such as we observe the difficulty the Non- Muslims face with blanket usurpation of power by the Syariah courts without any regards to the federal Constitution.

The ultimate resolution lies in focusing on the human rights morality, which is grounded upon the notion of human dignity—that all human beings are born free and equal.


Below are the links to Chinese and Malay renditions:
1. 联邦宪法模棱两可条文存在   司法罔顾少数民族宗教自由
2. Kekaburan Perlembagaaan Persekutuan dan Keengganan Badan Kehakiman untuk Melindungi Kebebasan Beragama Minoriti

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工委会议决:将徐袖珉除名

人民之友工委会2020年9月27日常月会议针对徐袖珉(英文名: See Siew Min)半年多以来胡闹的问题,议决如下:

鉴于徐袖珉长期以来顽固推行她的“颜色革命”理念和“舔美仇华”思想,蓄意扰乱人民之友一贯以来的“反对霸权主义,反对种族主义”政治立场,阴谋分化甚至瓦解人民之友推动真正民主改革的思想阵地,人民之友工委会经过长时间的考察和验证,在2020年9月27日会议议决;为了明确人民之友创立以来的政治立场以及贯彻人民之友现阶段以及今后的政治主张,必须将徐袖珉从工委会名单上除名,并在人民之友部落格发出通告,以绝后患。

2020年9月27日发布



[ 漫画新解 ]
新冠病毒疫情下的马来西亚
舔美精神患者的状态

年轻一辈人民之友有感而作


注:这“漫画新解”是反映一名自诩“智慧高人一等”而且“精于民主理论”的老姐又再突发奇想地运用她所学会的一丁点“颜色革命”理论和伎俩来征服人民之友队伍里的学弟学妹们的心理状态——她在10多年前曾在队伍里因时时表现自己是超群精英,事事都要别人服从她的意愿而人人“惊而远之”,她因此而被挤出队伍近10年之久。

她在三年前被一名年长工委推介,重新加入人民之友队伍。可是,就在今年年初她又再故态复萌,尤其是在3月以来,不断利用部落格的贴文,任意扭曲而胡说八道。起初,还以“不同意见者”的姿态出现,以博取一些不明就里的队友对她的同情和支持,后来,她发现了她的欺骗伎俩无法得逞之后,索性撤下了假面具,对人民之友一贯的“反对霸权主义、反对种族主义”的政治立场,发出歇斯底里的叫嚣,而暴露她设想人民之友“改旗易帜”的真面目!

尤其是在新冠病毒疫情(COVID-19)课题上,她公然猖狂跟人民之友的政治立场对着干,指责人民之友服务于中国文宣或大中华,是 “中国海外统治部”、“中华小红卫兵”等等等等。她甚至通过强硬粗暴手段擅自把我们的WhatsApp群组名称“Sahabat Rakyat Malaysia”改为“吐槽美国样衰俱乐部”这样的无耻行动也做得出来。她的这种种露骨的表现足以说明了她是一名赤裸裸的“反中仇华”份子。

其实,在我们年轻队友看来,这名嘲讽我们“浪费了20年青春”[人民之友成立至今近20年(2001-9-9迄今)]并想要“拯救我们年轻工委”的这位“徐大姐”,她的思想依然停留在20年前的上个世纪。她初始或许是不自觉接受了“西方民主”和“颜色革命”思想的培养,而如今却是自觉地为维护美国的全球霸权统治而与反对美国霸权支配全球的中国人民和全世界各国(包括马来西亚)人民为敌。她是那么狂妄自大,却是多么幼稚可笑啊!

她所说的“你们浪费了20年青春”正好送回给她和她的跟班,让他们把她的这句话吞到自己的肚子里去!


[ 漫画新解 ]
新冠病毒疫情下的马来西亚
"公知"及其跟班的精神面貌

注:这“漫画新解”是与<人民之友>4月24日转贴的美国政客叫嚣“围剿中国”煽动颠覆各国民间和组织 >(原标题为<当心!爱国队伍里混进了这些奸细……>)这篇文章有关联的。这篇文章作者沈逸所说的“已被欧美政治认同洗脑的‘精神欧美人’”正是马来西亚“公知”及其跟班的精神面貌的另一种写照!




[ 漫画新解 ]
新冠病毒疫情下的马来西亚
"舔美"狗狗的角色

编辑 / 来源:人民之友 / 网络图库

注:这“漫画新解”是与《察网》4月22日刊林爱玥专栏文章<公知与鲁迅之间 隔着整整一个中国 >这篇文章有关联的,这是由于这篇文章所述说的中国公知,很明显是跟这组漫画所描绘的马来西亚的“舔美”狗狗,有着孪生兄弟姐妹的亲密关系。

欲知其中详情,敬请点击、阅读上述文章内容,再理解、品味以下漫画的含义。这篇文章和漫画贴出后,引起激烈反响,有人竟然对号入座,暴跳如雷且发出恐吓,众多读者纷纷叫好且鼓励加油。编辑部特此接受一名网友建议:在显著的布告栏内贴出,方便网友搜索、浏览,以扩大宣传教育效果。谢谢关注!谢谢鼓励!












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