The Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim announced at the close of the Asia-Pacific Judicial Reform Forum yesterday that a study would be conducted on judicial systems in the region to determine if a judicial commission on the appointment and promotion of judges would ensure the independence of the judiciary.
He said judicial experts will be looking at how judges are appointed and promoted, then look at which system would be best for the independence of the judiciary — and the preferred system will be recommended for countries in the region to adopt.
Justice Kenneth Madison Hayne of the High Court of Australia said six weeks would be set aside to collate the information and present it in a usable format.
He said: “Factual information will definitely be published, but we would be circumspect about publishing opinions expressed in the survey”.
Fairuz’ announcement is a disappointment for three reasons:
Firstly, while it is commendable that the Asia-Pacific Judicial Roundtable Forum wants to make a regional study whether a judicial commission on the appointment and promotion of judges would ensure the independence of the judiciary, it is most presumptuous for the judges at the Judicial Roundtable Forum to assume that only members of the judiciary are most qualified to decide on the question, excluding other equally if not more important stakeholders such as lawyers and laypersons of the civil society.
In fact, it is a very pertinent question whether judges are the most suitable and capable persons to solely decide on the question of the independence of the judiciary, which affect not only judges but the larger societies which they serve.
The history of mankind has proved again and again that the principle of the independence of the judiciary had often to be salvaged and established not only in the face of opposition of reactionary power-holders but in many cases in the teeth of opposition of serving judges as well.
Secondly, how is the Asia-Pacific Judicial Roundtable study on the judicial systems in the region to carry out its remit effectively with regard to countries like Malaysia which does not have such a judicial appointment and promotion commission?
This question becomes even more pertinent when it cannot pass unnoticed that the Asia-Pacific Judicial Roundtable in Putrajaya had ended without daring to register any protest or even comment on the judicial crisis unfolding in Pakistan, where its Chief Justice Iftikhar Chaudhry had been arbitrarily suspended by President Pervez Musharraf sparking a Pakistani political and constitutional crisis over the doctrine of the separation of powers among the executive, legislature and judiciary as well as the restoration of full democracy in Pakistan.
Thirdly, it would appear that the Judicial Roundtable study is being used as a good excuse for Fairuz to continue with his denial syndrome to further proscrastinate and frustrate judicial reforms, particularly on the urgent need to have a more transparent process of judicial appointment to ensure that the judges appointed are of merit, professionally qualified, persons of integrity and good character, independent and courageous.
The present system, where the judicial appointments are decided by two persons, the Prime Minister and the Chief Justice, have proved to be most unsatisfactory, plunging the country into a series of judicial crisis since the late eighties — and the national and international confidence in the system of justice enjoyed by the country in the first three decades of Independence has yet to be fully restored.
In this connection, it is relevant to ask what is the reason for the five-month paralysis of the judicial appointment process where the post of Chief Judge of Malaya remains vacant since the retirement of Tan Sri Siti Norma Yaakob on January 5?
I had raised this issue in Parliament during the Royal Address debate at the end of March, saying that it “reflects poorly on the efficiency and professionalism of the Chief Justice that he cannot ensure a smooth transition for high judicial appointments so that a new Chief Judge of Malaya was able to take over from Siti Normah on her retirement on 5th January 2007” – especially as Siti Normah’s retirement date was known beforehand as she was given a six-month extension (which cannot be further extended) when she turned 66 on July 6 last year.
I visited the website of the judiciary to find that Siti Normah is still described as Chief Judge although she had retired some five months ago. (http://www.kehakiman.gov.my/html/judiciary_members.shtml)
This raises the further question as to how IT-efficient is the judiciary despite the huge sums of money spent on the judicial system, with the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz early this year officially handing over the e-judiciary project to Fairuz, which promised an end to court delays, postponements and huge case backlogs when courts nationwide go online.
But can such e-judiciary system work successfully when the judiciary is not even able to update its own website after six months?
Justice is dead in Malaysia since the sacking of Tun Salleh Abbas. It will take another generation for people to have faith in the judiciary system if they start to prove themselves now.
Justice today in Malaysia is a cop out…..skewed always to give the ruling party the advantage…..Rather be ruled by a rude, straight talking foreigner like Birch then a crooked, greedy slave trader like Maharaja Lela,today’s BN…..we Malaysians chose to keep quiet when they hero worshipped a thug as a freedom fighter 50 years ago….and today you must pay the price….there is no Rashid Maidin or Chin Peng who will stand up for you lot today….for you are now in the era of McDonalds called the comfort zone….so suffer and squirm on…….Malaysians today will never have what it takes to effect change……..
Fairuz says:
“..judicial experts will be looking at how judges are appointed and promoted, then look at which system would be best for the independence of the judiciary – and the preferred system will be recommended for countries in the region to adopt.”
Myanmar’s is the easiest to adopt and inline with with your political master’s wishes.
“It is most presumptuous for the judges at the Judicial Roundtable Forum to assume that only members of the judiciary are most qualified to decide on the question, excluding other equally if not more important stakeholders such as lawyers and laypersons of the civil society†– YB Kit.
As I understand it, the study looking at the judicial systems used in 40 countries in the Asia Pacific region is conducted by members of the Asia Pacific Judicial Roundtable Forum (“APJRFâ€Â) and the best system would be recommended to all countries of this forum.
Chief Justice Tun Ahmad Fairuz said whether by way of judicial commission, appointment by Parliament or by the head of the government, the best system would be recommended to all countries of the forum. “We will study each country’s system and decide which is the best to use. “If there is none, the forum can formulate one and recommend it,†he said.
Actually I don’t have a problem with this proposal. It is not as if it is Malaysia only making the proposal.
There are three considerations to bear in mind.
First, the “independence†of APJRF members conducting the study and making the proposal – who are the members of APJRF ?
They are 59 delegates – chief justices and legal officers – from 20 countries including Canada, Japan, Macao, Bangladesh, Indonesia, Singapore, Brunei, New Zealand, Maldives, Australia, East Timor, China, Hong Kong, Kazakhstan, Tonga, India, Fiji, Lao, Vietnam.
Second, it does not mean that whatever system of appointment recommended by APJRF will definitely preclude input from other stakeholders. If, for example only, APJRF’s members recommend the Philippines system, then “a judicial council and the Bar Council are involved in the appointments. Both parties would nominate several judges, depending on the number of vacancies, and the country’s president decides†as clarified by Ahmad Fairuz.
Third : relating to the issue of what is, concept wise, the best structure and institution for independent judicial appointments of quality, I think the best parties to conceive that structure are probably the judicial experts from more than 20 countries drawing on their different experiences from different jurisdictions. There is a wealth of judicial experience here drawn from all kinds of law, English common law, Dutch, native etc.
“…//…In fact, it is a very pertinent question whether judges are the most suitable and capable persons to solely decide on the question of the independence of the judiciary, which affect not only judges but the larger societies which they serve…//…YB Kitâ€Â.
Well certainly Judges’ input is invaluable and should be first but not exclusively considered.
Judges from different countries ought to know the kinds of problems and pressures judges face better than the other so called stakeholders like Civil societies, Bar Council, Opposition parties or other opinion leaders etc whose members don’t administer courts or judges!
I mean it wouldn’t be fair – or wise – for just about everyone else (other than judges) to give an opinion on how judges ought to be appointed to ensure independence and merit without those affected – the judges themselves – being consulted.
After all it is not too late – after APJRF has recommended a structure for judicial appointment to be adopted, and assuming Malaysia accepts that structure in principle – for the input of our local stakeholders comprising our Bar Council, Civil Societies and Opposition parties, familiar with local conditions, to be canvassed for refinement of that structure to suit local conditions.
At the origination and conception stage of such a structure, I would think the input drawn from the judges and legal experts of so many countries is invaluable and necessary.
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=515&Itemid=34
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=466&Itemid=34
Twelve years ago, when she was 26 years old, a Kuala Lumpur woman named Azlina Jailani came to a momentous decision. She converted to Christianity and changed her name to Lina Joy….Malaysia’s highest court ruled today in a split decision that a Kuala Lumpur woman who renamed herself Lina Joy has lost her 12-year fight to legally become a Christian. According to Malaysian law, Joy will remain a Muslim whether she wants to or not, and her religious status will remain on her identity card. Justice Richard Malanjun, a Christian, dissented in the ruling.
The reason why it takes so long to appoint the new CJ of Malaya is bcos they are waiting for the present most qualified judge to retire or go for early retirement or do what ever is necessary so that he wont be around, so that the next “qualified” judge whom they like can be appointed !!! Aiyah, they always use the same tactics in all the gov bodies etc. . That’s why you only see the same color type sitting on top!!
I scan the judicial list and I see no one qualified enough for the position from the Federal Court.
Why don’t they just give Sri Ram a double promotion and make him the Chief judge. This guy knows the law even if he is sometimes a little too vocal. Still, the position should automatically put that extra modicum of circumspection in his words which should suitably round him for the position.
At least, I am rather confident Sri RAm would not have made some of those stupid blurbs that Chief Justice Fairuz has made in recent times. It has all to do with experience, maturity, wisdom and tenacious legal training and scholarship – nothing to do with colour, college or connection.
Hello, is anyone listening?
In the U.S. the process of appointing federal judges (not to be confused with U.S. Supreme Court judges), for example, is very thorough. It starts with a vacancy; the Department of Justice and the White House does the selection and investigation and makes its suggestion to the U.S. President who then nominates the candidate. It then goes before the Senate Judiciary Committee for further investigation and voting. If the President’s nomination is rejected, the nomination dies and the process begins all over again.
Otherwise it continues into the confirmation stage by the Senate. Here the process becomes very transparent as you can watch it on TV live. If the Senate confirms it goes back to the U.S. President for confirmation. The Federal judge signs.
The process is grueling and no stone is left unturned about the candidate – ranging from who your family dentist is, to what your favorite color is ( and hopefully it is not ‘pink’), to whether cross-dressing is your favorite pastime, to the more serious issues like whether you are a member of the local branch of the Al-Qaeda, or to whether you are both a member of the local white supremacy group and the NAACP – or the local gardeners’ association, the rifle association or if you frequent the local club frequented by gays, pedophiles, hoes and dykes and slime balls). In short the process is transparent, grueling, detailed and exhausting and is expected to last for days. By the end of the day the candidate would feel he has been savaged, abused, stepped on, exposed and groped in the most private part of his life.
Now where does that leave Malaysia?
Prime Minister Abdullah sleep walks to the bed of the Lord President or CJ in the late hours of the night and whispers into his ears some names given to him – perhaps by his son-in-law. I don’t know why they refer to them as sons-in-law when all they do is to conduct themselves outside the law. But that is another matter for another day.
This is hardly the way for a country that takes pride albeit false pride in the ‘fact’ that its judiciary is one of the most independent in the world.
The result of this less than transparent and less than democratic way of doing things is obvious. [deleted]
Not the Prime Minister. He’s fast asleep again!
Stupidity is in, color is in….we are an apartheid nation….
Yes I heard it loud and clear endangered… I was in that court as a litigant and I was mesmerized by the learning of that judge Hon Sri Ram. It befits his name. I wouldn’t know about hierarchy nor about seniority of judges but a wise man can be smelled a mile away.How I wish that that he is Lord denning…a 100years on sir
Even mother nature cries as the case of Lina Joy is dismissed by the court. It is raining outside now. A Christian can be converted to Islam and you would not find the highest Christianity order that is the Pope intervening. Why can’t a Muslim be converted to Christianity without any interference ?
Quran, 2:256 says “Let there be no compulsion (forcing others) in religion: Truth stands out clear from error: whoever rejects evil and believes in Allah hath grasped the most trustworthy handhold, that never breaks. And Allah heareth and knoweth all things.
Sura 109, Revelation 18, Verse 6 says
In the name of God, Most Gracious, Most Merciful
Say, “O you disbelievers
I do not worship what you worship
Nor do you worship what I worship
Nor will I ever worship what you worship
Nor will you ever worship what I worship
To you is your religion, and to me is my religion
But on a positive note, you are now forced to study the Quran because you have to know the rules of the game in order to beat your opponents in the same game.
I read this quote when I was donkey year’s younger and there is meaning in it even though there is no spirituality about it.
If you love something, set it free. If it comes back to you, it’s yours. If it doesn’t, it never was. We do not possess anything in this world, least of all other people. We only imagine that we do. Our friends, our lovers, our spouses, even our children are not ours; they belong only to themselves. Possessive and controlling friendships and relationships can be as harmful as neglect.
Malaysians are encouraged to read. So may be we can all start off with the book of Quran in the English version. And do not forget to cross reference it to your own religious book. May you be enlightened even more.
Sorry, may I side-track sikit.
Dear k1980,
It’s a very very sad day for human rights in Malaysia. Lina Joy’s appeal was thrown out. The infamous Mufti of Perak some time back exclaimed:
” Islam is FINISHED when we allow people to leave it” – Perak Mufti Harussani Zakaria
I am confused. When you don’t even have the confidence that your religion is able to keep its followers intact, what good does it do with billions of forced “followers”, when there’s no faith left?
Every human being should have his/her right to freedom of choice – religious beliefs, values, education even friends. That’s basic “human right”.
Suddenly millions of Malaysians have decided to cross over. Let’s send out the tremors and boot them out. Time for change Malaysia!
Since Lina Joy has declared to the court that she is now a christian, has been so since she was 26 yrs old and no longer a practising muslim, what business has the Syariah Court to do with a non-muslim?
My gut feeling is to send her case to Syariah Court is further humiliate her so that she may be charged and accused of being an “apostate” .
Lina Joy’s case is sad for it shows Malaysia has not really progressed much as far as human rights are concerned.
It is clearly against the UN’s Universal Declaration of Human Rights that was passed in 1948.
http://malaysiawatch2.blogspot.com/2007/05/malaysia-and-universal-declaration-of.html
Coming back to the topic the 5-month delay is at best an indication of poor succession planning unless the last Chief Judge died in office or resigned earlier.
When the last person was appointed they would have known her age and since we follow retirement rules quite rigidly, the vacancy date would have been known months in advance.
At worse I am sure there will be some conspiracy ideas.
Hotel California.
can go in but cannot come out
Hey Jong!
Seditious! Seditious!
Don’t join the ranks of the educated buffoons.
Without religion, good people do good things and evil people do evil things.
With religion, some good people do evil things.
another quantity over quality thinking… having rejected Lina Joy’s appeal, it would mean that more people will have a scewed view of Islam. it was never supposed to be supressive but now i think most people will think so thanks to the syariah court and gutless judges.
Should go ask the syariah court muftis if they are proud of themselves for having millions of muslims in the country but more than 50% of them heck care the teachings of islam. just walk down any shopping complex or hang out spots… you see malays (presumeably that they are muslims) smoking, drinking, having close proximity and juz lepak the whole day away day after day. so what if they are muslim, they are juz trash of society. so what are the muftis thinking?
“I don mind islamic followers not practising the teachings of islam as long as they are in the religion.”
idiotic to the MAX!
Article 11 that says every ‘person has a right to profess and practise his religion’.
Every person here means every person, whether muslim or non muslim.
Malaysiakini reports on majority courts reasoning :-
“…….//……..While, the Federal Court acknowledges that there are no express provisions that syariah courts can decide on the issue of apostasy, however, if non-Muslims are converting into Islam, they have to go through the syariah courts. Therefore based on the concept necessary implication, if one chooses to exit Islam, (one) must go through the same authorities. I see no flaws in that logic….//….â€Â
Crux of the issue: Is there flaw in that logic?
Lets make three assumptions here, which I think are reasonable:
1. syariah courts will uphold the faith and more likely partial towards those who enter it against those who exit it;
2. article 11 of constitution upholds freedom of religion which means it holds a person’s right to enter a faith (conversion) in equal importance as his right to leave the faith (apostasy); and
3. all malays are muslims by birth, not so for non malays.
Upon these assumptions, lets examine the argument map of the court here. In a nutshell, the argument may be reduced thus:
(a) syariah courts determine non-Muslims’ conversion into Islam (entry into the faith);
(b) therefore arising from (a), syariah courts will also determine Muslim’s conversion out of Islam (exit out of the faith – apostasy).
The (a) implies (b) argument ignores the essential difference in positions of a non muslim voluntarily exercising his right to enter into the faith by conversion and that of a malay like Lina Joy whose being in the faith is an incident of birth and not choice, and whose right to religion is purported to be exercised by her here to exit rather than enter the faith – an exercise of which she will be restrained from effecting freely under the “equal protection of the law†enshrined by article 8(1) of the Federal Constitution, if the sole arbiter of whether she could do it or not is only the syariah court, which, if assumption 1. above were correct, would be partial in their interpretation to entry and but not exit in relation to the faith.
In the premises, the Majority decision is defensible in logic only if it can be shown that any of the assumptions stated 1, 2 or 3 is incorrect : otherwise, with all due respect to the Federal Court, the logic of the dissenting judgment of the Court is preferred to what appeared flawed of the majority.
In the context of the proposed qualifications for judicial appointments, as raised and discussed in this thread blog, perhaps, YB you should propose that one of the most basic subjects that judicial officers and judges should take up before they sit on the bench (in addition to legal qualifications) ought to be logic 101!
ahkok1982 Says:
May 31st, 2007 at 7:29 am
“I don mind islamic followers not practising the teachings of islam as long as they are in the religion.â€Â
idiotic to the MAX!”
ahkok, I think your crowing is just perfect!
Recommended Reading: “God vs the Gavel” – Religion and the Rule of Law [Author: Marci A. Hamilton]. Cambridge Uiversity Press. ISDN: 9780521703383 (paperback. US$16.99) ISDN: 9780521853040 (Hardback. US$28.00) Can be ordered from any leading bookseller.
Blurb: “God vs the Gavel challenges the pervasive assumption that all religious conduct deserves constitutional protection. While religious conduct provides many benefits to society, it is not always benign. This book examines the alleged tactics of religious entities to avoid the law and cause harm to others. Timely and topical in light of recent revelations….”
It is eye-catching to note that in the Lina Joy’s case, at the Court of Appeal, Sri Ram gave the dissenting judgment and at the Federal Court, Richard Malanjun gave the dissenting judgment. Has Religion divided the dispensation of justice? The majority decisions were all given by Muslim judges.
If someone from the Courts’ library is reading this, can you please buy some copies for distribution to the Federal Court and Court of Appeal judges? We need to look at all aspects and not just be coloured by our personal prejudices or religious upbringing!
Nothing related to this article but I am just curious regarding Lina Joy’s appeal.
So the expected judgement is delivered and as usual the non-muslim judge ruled in favour of Lina Joy whereas the other two muslim judges ruled against her appeal.
Now she needs to get the approval from the dreaded Sharia court first in order for the NRD to change her stated religion in the Mykad to Christianity.
Can she appear at the Sharia court dress from the outside in “Burqa” but once inside and facing those religious men to take it off showing her mini-skirt and bareback and in one hand drinking beer and on the other hand a piece of pork! Then stating loudly that she despise Islam and that she is doing everything opposed by that religion law!!
Will she then be granted her wish? Or will she be arrested for insulting the religion?
In the West before women were allowed to vote those who fought tooth and nail for their rights even sacrificed their lives for the cause. Is Lina willing to do that for the rights of all Malaysians irrespective of the consequences to her?
The civil service specifically and our public institutions generally are fast losing their effectiveness through the twin blights of corruption and incompetence. This is the critical challenge facing the nation. Unfortunately, the Prime Minister refuses to acknowledge or is unable to comprehend this reality. He is content with mouthing endless exhortations: “Be more efficient!†“Do not be corrupt!†“Be global in outlook!â€Â
If ministers responsible for education were to focus only on improving our schools and universities instead of busy trying to appear as champions of our race, language, and other extraneous issues, then we would need only one instead of three ministers.
Whereas before a RM 50 note would satisfy the traffic cop, today he or she would sniff at it, demanding a bigger loot to match his or her now higher expectations. There can only be two reasons for increasing salaries: to reward increased productivity and to attract talent. The civil service fails on both counts. There is no shortage of applicants for government jobs. As for productivity, visit any government department.
One would think that with the glut of applicants, the government would get the best talent. Far from it! The qualification for entry into the administrative service remains the same, any university degree. One would have thought that the government would tighten the standards and insist that candidates demonstrate competency in English and mathematics. Today our diplomats can hardly express themselves or understand the quantitative aspects of high finance, yet we trust them to negotiate complicated trade treaties and international agreements!
From http://malaysia-today.net/blog2006/guests.php?itemid=5034
Well, our independence of the judiciary have always been a question mark. We all know the amount of abuses that were done. It is not only in this sector, in fact every important sector that under the government be it PSD, Law Enforcer, Education, Medical, transportation , just about everything. We all know that there are enough evidence. At times, it’s not about the color of the skin. It is because the chosen one are a good and obedient ‘follower’. They like our guard dogs that obey to the master. Yes, they are bestowed and rewards with ‘perks’. Enjoying good overseas holidays with family. Everything they would have needed will be provided. Who will want to put sands into their own rice bowl. This best answer to give in any difficult and questionable cases are it’s the national interest and government policies.
The last 50 years have revolved into a mega empire of ‘self wealth first’ policies to all that in the system.
We cannot change the reality nor moved them out in any GE. They have reached a stage of ‘no one can move us anymore’.
Let us keep our own beliefs alive and live as Malaysian whom have the right to claimed our birth right. They can do anything to us, they cannot bring us down.
Tough times never last, but tough people DO
Lina Joy’s case is indeed a sad one for Malaysia as it shows we have not progressed much as a nation even after 50 years of independence.
For a start we do not even follow the UN Declaration of Universal Human Rights that was proclaimed almost 60 years ago.
http://malaysiawatch2.blogspot.com/2007/05/malaysia-and-universal-declaration-of.html
For the long delay in the appointment of the Chief Judge, it is at best a good example of the failure of succession planning as the previous holder did not die in office nor did she resign and the retirement age is fixed – basically a case of bad management.
Of course such a delay will result in conspiracy theories.
WHY are we so not satisfied with the decision made by the judges on the “joy” case??
We has lost the confidence in the judicial system.. It isnt the race, religion or facts of the case.. IT is the judicial system itself.
Do they have the judgement summary published? How did they arrive to their decision? Why do they need the Syariah Court to take over the case?
Freedom of Religion or Syariah Law, which comes 1st? When does Freedom of religion being applied to the person. The Person? Defination? A non 100% malay parentage?
Clear-Cut case – if you are a 100% Malay parentage or the either one of the parents is a Malay, shariah court would be applied to the case.
See, the perception..Shariah Court is for the Malay? or is it for the people whom has embrace islam 1st?
The LAW in ISLAM, is it true..once a islam always a islam.. in MALAYSIA? does it apply to the rest of the world?
Your FUNDAMENTAL RIGHTS is it protected?
See, No wonder the JUDGES cannot decide for JOY proper but to refer her back to SHARIAH court… The outcome is the same.. CONFUSED and BLAME it on someone one or sweep it under the rug!
THE PEOPLE OF ONE NATION MALAYSIA! YOU NEED A NEW ALTERNATIVE GOVERNMENT! ELECT ME!
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=510&Itemid=32
But huge amounts of money also have simply been wasted or lost to corruption, raising profound questions over whether Mahathir took the right development path. Perwaja Steel, designed to spearhead Malaysia’s industrialization, lost US$800 million and its chairman was arrested. The Petronas Towers have been superseded as the world’s tallest buildings after contributing to a real estate glut in KL. Petronas, the national oil company and perennial cash cow for bailouts, occupies one entire 88-storey tower. The super corridor has fallen far short of its goal of turning Malaysia into an IT powerhouse as the tech boom has bypassed the country and largely gone to India. The Bakun Dam, considered a major white elephant because there is nowhere to sell the power it would generate, has yet to be built.
But Proton will probably end up as Mahathir’s biggest failed legacy unless something so-far unexpected happens. It is unknown how much taxpayer money has gone down the drain. Some analysts put the figure between US$2 billion and US$$3 billion. Certainly the opportunity to consumers was staggering, as tariffs up to 200 percent on competing carmakers kept them out of Malaysia’s markets….Analysts say Proton’s cash reserves plummeted from around 2 billion ringgit at the end of 2004 to less than 500 million ringgit today. A recent Wall Street Journal-Asia report suggests that as Proton burns up about 300 to 500 million ringgit annually, the company will go into the red by the end of 2008.
This (Lina Joy case) is blatant injustice!
In all areas of our lives we had to face race based or religion based policies and decisions.
Now this has extended to religion-based court verdicts.
From now on, non-Malays and non-Muslims will find it difficult to win court cases if the opposing litigant is a Muslim / Malay.
Judges don’t look into the merits of the case but the litigant’s race or religion. This bias will be more pronounced in the near future and it’s inevitable.
I have no formal training in law but I sure can make a better decision than the two stupid judges who have broken their oath of office in the hope that this decision will please God and bring them to heaven.
To my mind there are 2 issues:
(i) Lina Joy’s right to freedom of religious beliefs,
her basic fundamental right must be respected.
She has also declared in Court that she has
embraced Christianity since she was 26 yrs old
and has not been a practising Muslim for the past
16 years.
(ii) What she requests now is to have the religion
“Muslim” deleted from her NRIC/Mykad.
The Federal Court rejects her appeal and has now directed her case to Syariah Court. Is the Syariah Court responsible for entries on NRIC/Mykad?
Justice Richard Malanjum didn’t mince his words. He called it “illegal and unreasonable” quoted the Star today.
The court decision may be a relief for most muslim Malaysians but as of wed 30 May 2007, for the many others – Malays and non-Malays, muslims and non-muslims alike – they have enough of the BN government and its miserable judiciary system.
We will send in the tremors and GO FOR CHANGE!
I have a dream, I believe many Malaysians do have the same dream, too, to see the majority of the people of our beloved country Malaysia will one day come to their senses and reject the notion that they are few hundreds years behind time and require special treatments in order to survive in this country and as a result of this, made used by the elite group that continues to stay in power by continuing their lies every day without shame. Please dont blame God or any one for the way you are, you are special in your own ways, you dont need to affirm this by building the tallest buildings, sending astronaut etc to prove to others that you too can do it!! Reflect and see why you are in the situation that you are in, could it be that what you believe in is not right since few hundreads ago? or is it due to some other reasons that only affecting you and not others!!!
This is for those who want to know in greater details the complexities of constitutional issues involved in Lina Joy’s judgment and their implications briefly touched upon in the above post.
When a non malay applies for NRIC and tells the NRIC Department (“NRDâ€Â) that he is a Buddhist, Christian or Hindu, it is accepted by the NRD and stated so in the identity card issued. In the case of Lina Joy, a malay by birth, the NRD whiolst allowing a change of name from Azlina Jailani to Lina Joy wouldn’t accept her statutory declaration that she had apostasied to become a Christian (unless she produced a certificate of ‘murtad’ or apostasy fro Syariah court) and in absence of such certificate, stipulated “islam†in her NRIC, which she challenged in the Federal Court.
CJ Tun Ahmad Fairuz (majority of Federal Court) said NRD had a right to demand a certificate or a declaration or an order from the Syariah Court before deleting ‘Islam’ from his or her identity card.
He said the decision to exit Islam was a matter for Islamic law to decide and the NRD needed the Syariah Court’s confirmation whether a person was Muslim or not (having renounced). He based that right of NRD on Regulation 4(c)(iva) of the National Registration Regulations 1990 (which states that Muslims need to display their religion on the IC) that singled Muslims out for additional procedural burdens which are not connected to personal law.
Lina Joy challenged NRD’s right and constitutionality of Regulation 4(c)(iva). She said it was discriminatory against Malays since it does not apply to Non malays. She said it was in conflict with Article 8(1) of Federal Constitution promising equal protection of laws to malays and non malays alike. If really in conflict Article 8(1) should prevail and Regulation 4(c)(iva) struck down as invalid because it conflicts with the more and most important basic law of the land – the Federal Constitution.
It has to be remembered that 8(1) on equal protection of laws has to treat like alike and unlike and unlike. Article 8(1) permits different treatment of different classes of people like the different classification is rational!
So the basic question is whether Malay should be treated differently treated from non malay. Implicit in Majority judgment is that for purposes of religion, Malays are differently treated from non malays, in the former case they are muslims by incidence of birth and Islam is their personal law. The argument proceeds further that this being the case, the different classification and treatment of malays from non malays is justified – ie there is “rational classification†– and is permissible as not being in conflict with article 8(1) of the Constitution guaranteeing equal protection of law.
The question unanswered is how does this “rational classification†argument stand in relation to Article 11 of the Federal constitution promising Freedom of Religion.
I think one has to look at it this way :
NRD’s Regulation 4(c)(iva) should be struck down as invalid if it conflicts with article 8(1) promising equal protection of laws. On the other hand Regulation 4(c)(iva) should be upheld as valid being not in conflict with article 8(1) if – and only if – it is rational to classify a Malay differently from a non Malay on matters of personal religion.
So the crucial question is whether it is rational to classify Malays differently from non malays to make it permissible in context of equal protection of law under Article 8(1)?
The preferred way of looking at it is that it is NOT rational – when one also takes into consideration Article 11 of the Constitution as well promising Freedom of Religion?
According to Article 11(1) “Every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.†The guarantee of Article 11(1) applies to ALL PERSONS including Muslims.
Freedom of religion is, of course, not absolute. All religious freedom is subject to general laws relating to “public order, public health or morality†as excepted in Article 11(5) of the Constitution.
Now none of these exceptions – “public order, public health or morality†– apply to prevent a malay like Lina Joy exercising her constitutional right to freedom of religion including to apostasies (unless one treats the 300 or more waiting outside the Court chanting for a decision in favour of the faith as a legitimate exception on grounds of threat to public order!)
It is true Schedule 9 List II Item 1 of the Constitution allows the state assemblies to enact Syariah laws relating to marriage, distribution of estate and also punish “offences by persons professing the religion of Islam against precepts of that religionâ€Â, except in regard to matters included in the Federal List (offences under secular Penal Code)â€Â.
So the question is whether apostasy is criminalized under state laws. It is not clear that it is. Even if it purports to do so it will conflict with article 11 for apostasy per se is not condemned anywhere in the Constitution.
Dissenting Judge Datuk Richard Malanjum puts it thus in his dissenting judgment : (i) “ The insistence by NRD for a certificate of apostasy from the FT syariah court was not only illegal but unreasonableâ€Â. (There’s nothing to provide that the NRD has such a right to ask) (ii) The FT syariah court has NO SWTATUTORY POWERS to adjudicate on the issue of ap[ostasy. Thus NRD’s insistence (that Lina gets a certificate of apostasy from FT Syariah court) was “unreasonable for it required the performance of an act that was (legally) impossible to performâ€Â.
In the premises of the above discussed, it would imply that if Lina Joy’s constitutional right to Freedom of Religion under Article 11(1) of the Constitution were infringed, it would mean that her constitutional right to equal protection of law under Article 8(1) of the Constitution Freedom was also doubly infringed.
The entire judiciary needs a revamp.
Look at how many cases were being acquitted throughout; assigning reasons of insufficient evidences or due to technical glitches. The morale to uphold justice is no longer in existence instead finding more and more excuses to alter the better system to make it worse and get away with it.
How many high court cases involving VIPs of numerous charges from corruptions to murder to commercial crime ended up sending the accused behind bars; upholding justice and protecting the interests of the country, people and the systems? You dont hear them but you do hear acquittals as rampant as just another piece of meal in the mainpage of the printed media.
Joy’s case is another good example. Why hold an individual for the sake of holding and not because of what is best for the individual? The same applies to the systems of entire country where what matters more is not her citizen but selfishness to ensure oppressing situations that certain parties will benefit out of it and for sure it will not be the mass.
No one will win in Joy’s case but for certain Joy will be the only one who’d lost. Noting that she is the “victim” of circumstances.
Malaysia – anything, everything, is possible.
http://www.iht.com/articles/2007/05/30/news/malaysia.php
Joy, who lost her job as a saleswoman last year because of the controversy and whose family has reportedly been harassed, is seeking political asylum in Australia, according to one of her advisers….The Malaysian Constitution is in some ways a self-contradicting document, analysts say. It both defends freedom of religion and declares Islam the official religion. The abandonment of Islam, or apostasy, is deplored by many Muslims and in some Malaysian states is punishable by fines and imprisonment…
“Islam in our country is not just a religion – it’s law,” said Pawancheek Marican, a Malaysian lawyer who attended the trial.
“For a long time I’ve noticed there has been an increase in Islamicization and discrimination,” Dawson, Joy’s lawyer, said in an interview last year. Dawson, a Christian of mixed Chinese and Indian heritage and whose practice focuses mainly on commercial law, said he took up Joy’s case in 1999 as a sort of religious mission. “It was a calling, if you understand it from the Christian perspective,” he said. He described Joy as “a simple and ordinary person” who felt strongly about her religious beliefs.
To most Muslims, their first duty is to God and other matters are secondary……their actions and behaviors depend on their interpretation of the holy book.
Eg. The call to fight the enemy during prophet Mohamed’s time actually refer to anti Muslims from his own people, not the Christains.
“Joy, who lost her job as a saleswoman last year because of the controversy and whose family has reportedly been harassed, is seeking political asylum in Australia…” k1980
Correction. It is not political asylum but religious asylum – 1967 U.N Protocol relating to refugees.
“YB you should propose that one of the most basic subjects that judicial officers and judges should take up before they sit on the bench (in addition to legal qualifications) ought to be logic 101!” Jeffrey
Law is not about logic. The reasoning may be logical.
When the Federal Constitution was drafted in 1957, it was at a time when the Malays felt marginalized in their own country by the influx of immigrants and as a result of it. They felt their way of life i.e. their customs and religion were being threatened.
Many felt that sending their children to English schools would make them Christians and going abroad for further studies would turn them to Christians. It was at a time when going to England would be by sea – a journey that would take months. It was at a time when they don’t get to see their loved ones for three years or more.
The REID Commission must have felt it necessary to allay the fears felt by all Malays by giving special recognition to Islam as the official religion and to prohibit proselytizing the Malays who must remain Muslims.
Some five decades later Article 11 is given a narrow interpretation consistent with the fear then and the political climate at the time – but out of sync with current day developments, the importance of human rights to the international community today etc.
I do not believe it was meant to stop the few among the Malays who are determined to change their religion. I do not believe religion is meant to be as intrusive as it is today in the day to day life of Malaysians.
“So the question is whether apostasy is criminalized under state laws. It is not clear that it is. Even if it purports to do so it will conflict with article 11 for apostasy per se is not condemned anywhere in the Constitution.” Jeffrey
For it to be a crime it must be stated so in the country’s PENAL CODE. It is not.
Freedom to choose ones’s religion is a universal human right. I am sure all, including muslims, recognise that. The Federal Court has determined the procedure that a muslim should follow in order to convert to another religion; it has not decided that a muslim cannot convert to another religion.
If in adopting such a procedure throught the Syariah court, the convert is subject to arrest or detention, then, and only then is there no freedom to practise one’s religion in Malaysia. The government must provide protection for anyone applying through the Syariah court to renounce Islam.
Edit: “through”, not “throught”
How old are you, Good Coollie? You sound very naive.
“Freedom to choose ones’s religion is a universal human right”
True. So who is denying Malaysians of Chinese, Indian origins their right to practice with their religion. It is all there engraved in stone for all to see: Article 11.
But don’t you go trying to tell the Malays what to do and what to believe. They choose to play by different rules. That is their freedom of speech. Who are you to say what is good and what is not???
Malays make up no less than 59% of the total population and every five years they go to the polls and vote Alliance and then BN to run the government. The Federal Constitution has remained the same as far as the freedom of religion is concerned. So why is the DAP making a lot of noise over the freedom of religion of the Malays?
Lina Joy is just a confused individual. She has to play by the rules.
i just saw her walking in a daze along Jln. Imbi and I thought some reader says she is away?