Tuesday, 30 January 2018

Interview with The Malaysian Insight 28 January 2018


A fair and just outcome

Brave New World (The Star)
31 January 2018


THE saga of Indira Gandi Mutho is finally over. After nearly a decade of legal battles, the Federal Court has made a final decision on the case.
It is an impressive decision with many implications on constitutional interpretation that may well have a profound effect on Malaysian constitutional law in general. However, I shall not be delving into that here. What I wish to do is to look at the immediate effect of the decision.
Very briefly, the facts of the case are as follows. Indira, who is Hindu, married a Hindu man and they had three children. He converted to Islam and they separated and then divorced. The ex-husband, without Indira’s knowledge or consent, converted the children to Islam. At the time, they were 12 years, 11 years and 11 months old.
She challenged this conversion in the High Court and succeeded. The Court of Appeal, however, reversed the decision and the matter ended up in the Federal Court.
On Monday, the Federal Court held that the procedure needed for a conversion to occur was not followed properly, in particular the requirement for the individuals converting to be present before the authorities to recite the proclamation of faith.
Furthermore, this failure of procedure was something that the civil court had authority to review and pass judgment on.
The second point that the Federal Court made was that the religion of a child has to be determined by both parents. This is based on the premise that this is in the best interest of the child because if there is no cohesive agreement between parents, then the child would be placed in an untenable and incoherent home life.
Also, the constitutional provision regarding the faith of a child was dealt with. That particular section says that a “parent” has the power to determine a child’s religion. The Federal Court held that the word “parent” was used and not “parents” to cover the eventuality that only one parent is alive.
On top of that, the Federal Constitution’s interpretive provisions clearly state that words in the singular are to be read as plural and vice versa. Therefore, the term “parent” in actuality means both parents (if they are alive).
So, what does all this mean?
The first implication of this judgment is that for all administrative matters, the civil court has jurisdiction to review whether the law has been properly followed. This is important because we have a two-court system, the Syariah and the civil, and there has to be clarity as to which court has the jurisdiction to do what.
The second issue is regarding the conversion of children. Can a person who converts to Islam convert his child or children to Islam? Yes, absolutely.
However, two conditions must be fulfilled. First, the procedure to do so has to be followed properly. This will depend on where the conversion takes place, as each state has its legislation on the matter. Second, the consent of both parents is needed (this applies to conversions in religions other than Islam).
In my opinion, this is a very fair and just decision. It respects the Constitution and it emphasises that parents have to act in a way that is in the best interest of the child. It does not pander to any notions of supremacist thinking and in so doing, has achieved that rarest of things – justice.
There are those who are unhappy with the decision naturally. And they have the right to express their displeasure. The grounds of their argument is that such matters should belong to the Syariah Courts and that according to their interpretation of Islam, once one parent converts to Islam, then the children automatically follow.
To this, my response is as follows.
The Constitution is quite clear on the division of jurisdiction of the different courts. Administrative review is in the jurisdiction of the civil courts, not the Syariah Courts. And the Constitution is also clear on the need for both parents to agree before a child can be converted.
Therefore, any change to the law will have to be preceded by a constitutional amendment. It is perfectly possible for some parts of our Constitution to be changed lawfully. But there is a way to do it as there are rules to follow to achieve it.
In our case, the constitutional changes needed are many and for some of the required amendments, it would take a two-thirds majority agreement in both houses of Parliament and the consent of the Conference of Rulers.
At the moment, no one holds a two-thirds majority. So if one is unhappy with the law as it stands, lobby to change it. But change it properly and in the correct fashion.
At the end of the day, surely playing by the rules is something that applies equally to all people of all faiths. Any contrary stand is simply unjust.


Racism has to be opposed from the top down.

Brave New World (The Star)
17 January 2018


DEMOCRACY takes power away from the few, or the one, and places it in the hands of the many. Which is why we hear phrases like “people power” and “returning power to the people” bandied around when speaking about democratic reform.
Theoretically, if there is a free press, fairly delineated constituencies, independent state agencies and a respect for human rights, then the government of the day will be a reflection of the will of the people.
We, the ordinary men and women, choose our leaders. We can also “fire” them by voting them out. Therefore, we have ultimate power.
However, just because power ultimately lies with the people, this does not mean that leaders have to bend to the will of the people all the time.
Sure we can vote them out (theoretically), but while they are in authority, they have a degree of freedom to do what they may deem to be right, even though the people might not like it. This is known as leadership.
This is why unpopular but ultimately worthy policies and legislation come into place. It takes leadership to do this. A person who is scared of losing popularity, especially among his core supporters, to the point of supporting noxious views, does not have leadership qualities.
Which is why if a government believes in certain things, the leaders must speak up accordingly. Conversely, they must speak up against things they don’t believe in.
Let me give you an example. If a group spouts obnoxious racism, a true leader would speak out against it, even if the group members are among his supporters.
If he does not do so, what it means is that he is condoning such views. Even if he is keeping silent so as to not alienate his support base, he is acting in a cowardly fashion and is in effect legitimising racism.
Now, I am saddened by the fact that racism in Malaysia is alive and well. When writing and teaching, I have consistently argued for us to move away from such attitudes. I honestly thought that there were more and more Malaysians who are of the same view. Sadly this is not so.
Surveys have shown that most Malays will vote based on race.
This is depressing to the extreme. Yet, this is also the reality.
One of the reasons Tun Dr Mahathir Mohamad is the chosen Prime Minister candidate for Pakatan Harapan is so that he can woo the Malay vote.
I am presuming his Malay nationalist background will make him palatable to those who still think along those lines.
This is the political reality, and it is beyond sad. Now, Pakatan has always claimed to be non-racially motivated.
Yet they have to pander to a racially motivated electorate. This is realpolitik and it is upsetting yet understandable.
The question is, if Pakatan wins, will it try to move the nation away from such repulsive thinking? Will it be able to show some true leadership?


Happy New Year! (Spiked article)

Happy 2028 everybody!
How lucky we are to be living in Malaysia in this day and age. So many years of being governed by the same people that we simply can’t imagine how life will be without them.
And what good leaders they are. This year we have been promised that the GST will only be 45% and not the 50% that we thought. How lucky we are to have such a kind and loving government.
So much to look forward to as well. The high speed rail link to Singapore is finally ready. So what if there are so few of us with enough money to afford it that they are only planning one trip a week. It is still a great achievement which proves that Malaysia is a real power house; not just in the region but the world!
On a personal level, my life in the university can be no better. For ten years now I have been prevented from saying anything at all. So much so that there is no need to do any research and publication. Furthermore my classes last at the most ten minutes. Two minutes to say good morning and to sing the national anthem and eight minutes to take attendance.
Socrates said that wisdom is knowing that you know nothing. In which case my students must be the wisest people on earth. This just goes to show that Malaysia is the best nation for education in the whole wide world.
And isn’t it great not to have any more elections? Ever since the entire nation has been declared a security area we have done away with all that messy democracy business. Martial law is just awesome. All those soldiers and police wondering around armed to the teeth just makes me feel so much safer.
I also love the fact that we have no more newspapers, books, and magazines. Honestly, when I think of the past when we had so many different ideas and thoughts to contend with; life was just so confusing. It really was a drag to have to think about things and come up with my own conclusions. It is so much easier now days when all we have to do is to tune in to the one channel at 9pm every night and we are just told what to think.
It is likewise wonderful that we don’t have to wish each other every time there is a cultural or religious festival. So much time saved. And money as well since I don’t have to spend on greeting cards and the like. In fact I actually don’t know what religious and cultural celebrations there are. I only know my own. Which is fantastic because then I know for sure that my faith is strong.
Anyway, I better submit this article to the Ministry of Sensitivities now. Those guys do such an amazing job making sure that their sensitivities are not offended. I really don’t know where they get the strength.
So, until next time my friends: Unity in Subservience! Long live Malaysia!

A not-so-simple decision

Brave New World (The Star)
20 December 2017


ALL right, this is going to be a short one. It is my Christmas gift to my editors who are all champing at the bit to begin their Christmas celebrations, so much so that the last thing they want right now is to be bogged down by a lengthy piece by me, riddled with grammatical mistakes and conniption-inducing passages for the in-house lawyers.
The Federal Court recently declared that Section 62 of the Malaysian Anti-Corruption Commis-sion Act is constitutional.
Basically, Section 62 requires that a person accused of corruption must put in their defence before trial starts. This is against the usual practice in criminal-type cases where a defendant puts in his defence once trial begins.
The Court of Appeal recognised this and stated that Section 62 was in contradiction with Article 5 of the Federal Constitution, which is about fair trial, and Article 8, which is about equality.
The Federal Court disagreed with the Court of Appeal and it held that if the defendant wanted to add more points to his defence, the Evidence Act allows this to happen after the trial has started. So, where is the unfairness?
Reading the judgment of the Federal Court, all I can say is “Aiyaa, is it time for yet another lesson on basic legal principles?”
I suppose it is.
Our system of law, indeed any system of law in a civilised nation, works on the premise that a person is innocent until proven guilty. This being the case, when a state is accusing you of a wrong, it is up to the state to establish that you have committed the said act. It is not up to the accused to prove that he did not commit the act.
This is why in criminal trials, the prosecution has to first establish that a wrong had been done. Only when a judge is satisfied that this may be the case does a defendant put in his defence.
Asking a defendant to put in his defence at the very beginning of the proceedings implies that he is already presumed to be in the wrong. This goes against the principle of innocent until proven guilty.
It’s simple, right? Well, perhaps not simple enough.
Oh well, whatever. Merry Christmas, everybody!


The plot thickens in Game of Tuns

Brave New World (The Star)
6 December 2017


THE last few weeks have been hard for me.
No, I am not talking about the rising cost of living. Or even the gag order that has been placed on my academic colleagues and me, forbidding us from criticising the Government or the university. Neither am I talking about the religious agencies and groups who are intimidating some of my friends.
I am talking about the appalling form that is being shown by Tottenham Hotspur. In a world of constant challenges, weekends watching football have been my escape and my balm. And for the last two seasons I have been slathered in balm.
Spurs have been playing beautifully and although they have never made the top spot, they seem to be edging ever closer, finishing second last season.
Even in this season, we have had moments of glory; like the thrashing of Real Madrid. Oh how sweet that was, especially when seeing that over-coiffed mannequin Ronaldo sulking in disbelief as his team lost 3-1.
However, we have messed up massively too. In the league, apart from a fortunate win against Crystal Palace, we drew with West Bromwich and Watford, and lost to Leicester, Manchester United, and the most painful of all, Arsenal.
So on Saturday nights, I have been ranting and raving and swearing like a madman. It all looks so familiar.
Just when my hopes have been raised at the thought of a new dawn for my beloved team (which I will naturally support till I die, regardless of results) we appear to be diving straight back to mid-table ignominy where we have been languishing for decades.
Which brings me to the proposal that the Prime Minister and Deputy Prime Minister-in-waiting for the opposition are to be Tun Dr Mahathir Mohamad and Datuk Seri Dr Wan Azizah Wan Ismail.
Aha! And you thought this was going to be a pure football article!
It all looks so complicated. They will only be the interim leaders of the nation if the opposition wins the next general election.
The plan is that once they win, the new Government will endeavour to get Datuk Seri Anwar Ibrahim pardoned so that he can stand in a by-election and then be PM.
I say, man; these political machinations are more complex than the average episode of Game of Thrones. Or should I say Game of Tuns?
Anyway, with my simple non-politician mind, I am wondering why it has to be like this. It feels like the new political dawn of this country is going to be dashed as we go back to where we once were.
It is so frustrating. I mean, of all the Members of Parliament and leaders in Pakatan Harapan (the Alliance of Hope: I love it; it sounds like something from Star Wars), surely there is a potential PM out there.
I have heard people calling for Pandan MP Rafizi Ramli or Selangor Mentri Besar Datuk Seri Azmin Ali as PM. Well, sure, whatever rocks your boat.
For me, though, I don’t see why it can’t be Nurul Izzah Anwar. She is smart (the most important criterion), corruption-free, young and can appeal to a wide range of people.
I may be wrong, because I am old and decrepit, but I have a feeling that someone like her may just energise the youths. The youths who I am quite certain are hungry for change, and not like some minister has said, want to oppose the BN just for the sake of it.
There are those who say that she will always be in the shadow of her pop. That is pretty insulting, I think.
She is a capable and intelligent woman and if she becomes PM, I am sure that she won’t allow herself to be pushed around by Daddy. I mean, if I were PM I wouldn’t let my dad push me around; maybe my mum, but not my dad.
But at the end of the day, I am just some small fry squeaking away on the fringes. The political parties will do what they will do.
Is this cause for despair? I don’t think so.
Let us take the example of Indonesia. After the 1998 Reformasi that ousted Suharto, they had their first free elections. And who was voted in? B.J. Habibie. And what party was he from? Golkar, Suharto’s party.
It would appear then that it was the same old same old. But no, it was merely a period of transition.
For a nation that was ruled by one group and one man for so long, it may have been necessary for a more gradual change to happen than an outright 180-degree switch.
And sure enough, change did happen with the next President, who was Abdurrahman Wahid, better known as Gus Dur, a religious scholar and long-time opponent of the Suharto regime. Today, despite their troubles, Indonesia is the most vibrant democracy in South-East Asia.
So, perhaps, Malaysians, like Spurs fans, just have to be patient. It may be that we need to take a few steps back and suffer a few falls before we can truly start to fly.

Respect in and for the House

Brave New World (The Star)
22 November 2017


WE used to take our Constitutional Law students for a day trip to Parliament. Everyone would be dressed up and we would troop there in two buses.
Usually the mood on the trip there was one of excitement. Most, if not all, of the students would never have been in Parliament and this was a big deal.
After all, here is the place where our laws are made. All those statutes that they have to learn, understand and argue about are created in this place.
And there was usually an eagerness to listen and watch the debates. When I used to go on these trips, there was no live telecast of Parliamentary proceedings, so to see the Members of Parliament in action, one had to be physically there and this was a rare treat indeed.
The expectations of hearing intelligent and sophisticated debate by the “honourable” ladies and gentlemen of the House were usually dashed within a few minutes.
The standard of the exchange would often be of the lowest level, being not much different from a coffee shop argument.
I remember one student turning to me and saying disbelievingly, “These people make our laws?”
I am not one for formality. In most situations I find it ludicrous and self-important. But there must be some places where a degree of respect has to be maintained.
Parliament is where laws that affect the lives of millions are made. There must therefore be a sense of the gravity of such an endeavour.
It is not the place to be coarse and crude.
It is shameful that in this day and age, an MP can still be utterly disrespectful to women, speaking words that treat them as objects and not as equal human beings. I suppose the people in his constituency like him so much that they continue to vote him in despite his comments in Parliament.
Of course there will be claims that he was only joking.
Sure, if you want to joke, why don’t you do it with your cronies in whichever other places you gather? I am sure a bunch of middle-aged men love nothing better than to crack sexist jokes about women while they rub their misshapen bellies in glee.
But not in the House. To do so is to disrespect, not only all women, but also the dignity and importance of the House.
And Parliament must also be a place of fair play, where all sides are given equal opportunity to speak and votes are carried out in a fair manner with absolutely no favouring of one side or the other.
If even this basic thing cannot be achieved, then those who are supposed to be running the place would have failed in their duties.
There are so many problems with our Parliament.
The speed with which bills are rushed through, the lack of cross-party cooperation, the short amount of time given to prepare debates on new legislation; the list goes on.
But it seems that we can’t even get the basics right. How can we say we do when impartiality is questionable and grotesque things can be said freely?