The fact that three out of a seven-man Federal Court bench gave dissenting judgments on the recent "Allah" case is an indication there are cogent grounds for the decision to be reviewed by another panel of the apex court, said a Christian leader from Sarawak.
Archbishop John Ha of the Roman Catholic Archdiocese of Kuching also said given Putrajaya's immediate statement to assure Christians that the ban was limited to the Catholic weekly, Herald, and that the 10-point solution still stood, shows that the Federal government had the power to lift the ban on the use of the word Allah in the Bahasa Malaysia section of Herald.
Expressing his disappointment and concern over the Federal Court's decision not to grant leave to the Catholic church in the Herald case, Ha said he took consolation that the decision was not unanimous.
He pointed out that there was also a lot of dissatisfaction over the Court of Appeal judgment that overturned the earlier High Court judgment which effectively lifted the ban by the Home Minister on Herald from using the word Allah.
Ha added that the dissatisfaction arose from what was perceived as "flaws" in the reasons given by the Court of Appeal.
Ha said, granting leave for the case to be heard by the Federal Court would have provided a golden opportunity for issues of constitutional rights and protection for freedom of religion to be articulated by the highest court in the country.
He said that Catholic lawyers had pointed out that the leave would have provided the opportunity to interpret Article 11 (1) and (3) of the Federal Constitution with respect to the rights of non-Muslim communities in Malaysia to practise their religion.
"In my personal view, bearing in mind the degree of public importance of legal issues raised, granting leave to enable such critical issues to be expounded fully would have been an opportune occasion to contribute to a greater public confidence, or if not, at least to reduce the loss of it, in our judicial system.
"It is lamentable that the opportunity has been lost," the Archbishop wrote on the archdiocese website.
He said the 10-point solution is the way forward for the country and for it to work, the ban on the use of the word Allah in Herald, must be lifted.
Ha added that the legal implication of the Court of Appeal decision was that the ban on the use of Allah was nationwide, adding that the Federal Court, in denying the leave application, meant that the Court of Appeal judgment was intact.
Ha said that this created a confusing situation – on one hand the nationwide ban was still effective – on the other, the assurance by Putrajaya that it was only confined to Herald.
"The ban is a ministerial order or executive decision and the Federal government has the competence to rescind it.
"I pray and appeal to the Federal government to do that so that the 10-point solution can be implemented without hindrance and our nation can move on," he wrote.
Ha also commented on the "bold seizure" of 321 Bahasa Malaysia and Iban-language Bibles from the Bible Society of Malaysia by the Selangor Islamic Religious Department (Jais) and the refusal by the Selangor Islamic Religious Council (Mais) to return them.
He said that the Federal Court decision may encourage and embolden "high-handed" and "disrespectful" actions by a Muslim body on a non-Muslim organisation.
"My fear is that the refusal of leave may spiral into a wider sphere than just the Herald and may spill over to the ban of the use of the term 'Allah' by non-Muslims at large, despite the government’s assurance.
"Would the government and its machinery be able, or daring enough to contain this likely spiral, should it happen?” he questioned.
Ha also wrote that Malaysia was intended to be a democratic nation and a secular state but over time, there has been a deviation from the original intention of the founding fathers.
He added that while Islam was given special position, other Malaysians could practise their faith in peace and harmony as guaranteed in the Federal Constitution.
Ha, however, said this constitutional safeguard is being politicised and the courts appeared to be reluctant to enforce them, especially in situations where public pressure is exerted by certain groups that do not respect the safeguards for minorities.
"Any ban on the use of the word Allah by Christians in any manner is an infringement on the practice of Christianity.
"I cannot help wonder whether eventually the Constitution will be broken to give way to some fundamentalist quarters who seek to enforce an Islamic way of life for the whole nation," Ha wrote.
The Archbishop urged Christians not to "panic" in the current situation, adding that for God, there is "never a cul-de-sac".
"He will open a path for us and for the whole nation to move on. For sure, we need to continue to do our part to get the issue resolved and pray for God to open a path for us," he said. – June 28, 2014.
Too little, too late done to combat human trafficking
Last Friday, the US State Department downgraded Malaysia, together with Thailand and Venezuela, to the lowest ‘tier-3' status in its Trafficking in Persons (TIP) Reports, as the world’s worst centres of human trafficking. This came after the State Department found that the Malaysian government has shown no significant effort to comply with the minimum standards for elimination of trafficking.
Such a downgrade is a shame to us as we are dumped into the same category with some of the world’s most lawless, dysfunctional and repressive regimes such as Iran, Syria, Zimbabwe and North Korea. The downgrade may also open up the country to possible US sanctions.
On Monday, the Foreign Affairs Ministry had issued a statement to urge the US State Department to reconsider its assessment, arguing that the information used to prepare the report was flawed, inaccurate and did not reflect the steps taken by Malaysian trafficking to combat human-trafficking.
In its statement, the Foreign Affairs Ministry has listed down some of the efforts done by the Malaysian government in combatting human-trafficking, including a new policy, which came into effect on March 1, 2014, allowing the victims of labour trafficking to work and reside in Malaysia; the launching of the standard operating procedure (SOP) for enforcement agencies in November 2013; and a new pilot project finalised in March 2014 to establish a shelter home with an NGO for the victims of human-trafficking.
Nevertheless, we believe that such efforts are too little, too late. We would like to remind Putrajaya that Malaysia had been on tier-2 ‘watchlist’ for four years and were given waivers for two consecutive years before the downgrade!
Therefore, moving forward, instead of denying the report, the government must heed on the comments and recommendations in the TIP report. If they find that the information acquired by the US State Department is flawed, then they must make effort to communicate with them.
One of the plausible efforts that we would like to highlight to the government is on its cooperation with the NGO, responding from this section of the TIP report:-
“NGOs - with no financial support from the government - provided the majority of victim rehabilitation and counselling services. At times, the government granted NGOs access to victims in government facilities; however, it prevented some victim assistance organisations from accessing shelters to provide services.”
‘Increase funding to anti-trafficking NGOs’
At such, we hope that the government can increase the funding to anti human-trafficking NGOs which have proven track records. In addition, the government should also leverage on the expertise and experiences of the NGOs in government facilities. Instead of relying fully on its own personnel in its facilities, the government should consider work more closely with the NGOs who already have experiences in these works.
All in all, we hope that the government will put greater urgency in anti human trafficking efforts. The government must have a systematic and strategic plan with clear timeline to improve our status to at least ‘tier 2' in next year’s US State Department TIP report. This can serve as a key performance indicator to measure the country’s effectiveness in anti human trafficking.
Lastly, we would like to stress the most important aspect of combatting human trafficking is not about the rating in the TIP report, it is about human’s life and dignity. The victims of human trafficking may come from foreign lands but they shall not be mistreated and robbed of basic needs and dignity on our land.
Malaysia must stand up and be a responsible member of the international community.
YEO BEE YIN is DAP state assemblyperson for Damansara Utama. Source:http://www.malaysiakini.com/letters/266779
The Christian community will continue to use the word Allah in Bibles, church services and gatherings as the Federal Court ruling today was only confined to the Catholic weekly, Herald, said the Christian Federation of Malaysia.
Its chairman Reverend Dr Eu Hong Seng said that given the court's refusal to grant the Catholic church leave to appeal, it will treat the decision of the Court of Appeal as being confined to that particular case.
"We maintain that the Christian community continues to have the right to use the word 'Allah' in our Bibles, church services and Christian gatherings in our ongoing ministry to our Bahasa Malaysia-speaking congregation, as we have done all this while," he said in a statement today.
He said this was guaranteed by the Attorney-General himself, who had previously said on October 20, 2013, that the case was only meant for the usage of the word Allah in Herald.
"As legal adviser to the Malaysian government, we will hold him (A-G Tan Sri Abdul Gani Patail) and the government of Malaysia to that position," Eu added.
"There are other pending cases in the courts that would involve the matter. We will have to see whether these will provide alternative avenues to uphold and defend freedom of religion and freedom of religious expression in Malaysia."
The Federal Court today dismissed the church's leave application to appeal the ban by the Court of Appeal on the use of the word "Allah" in the Herald.
Four of the seven-member bench dismissed the church's application for leave to appeal, saying that the Court of Appeal was right in its decision to ban the word in the Catholic weekly.
Chief Justice Tun Arifin Zakaria, who led the seven-man bench, said the President of the Court of Appeal Md Raus Sharif, Chief Judge of Malaya Zulkefli Ahmad Makinuddin and Federal court judge Suriyadi Halim Omar agreed that leave should not be granted.
The CFM, Eu (pic) said, was "extremely disappointed" with the decision, adding that simple justice would have meant allowing the appeal to go through.
"We continue to maintain that the decision of the Court of Appeal, and its reasoning in arriving at their decision, were so critically flawed in so many respects.
"Simple justice would have mandated an appeal, to rectify the many incorrect and inaccurate statements and observations of the Court of Appeal that led to its decision," he said.
He said the Appellate Court's decision had caused serious negative repercussions on the freedom of religion for Christians in Malaysia but lamented that the Catholic Church had been denied the opportunity to challenge the "inaccurate statements and observations".
"In the meantime, we call on the Christian community in Malaysia to remain steadfast in their faith and courageous in the face of much prolonged adversity," Eu said.
Earlier today, Herald editor Father Lawrence Andrew also expressed disappointment that the four judges who had rejected their application had not talked about the rights of the minority in the country.
"The four judges who did not grant us the leave to appeal spoke about things that did not touch on fundamental basic rights of minorities," he said outside the court.
One of the church's lawyers, S. Selvarajah said the church was considering a review of the Federal Court decision but added that no decision had been made so far. – June 23, 2014.
BY JOSEPH SIPALAN June 23, 2014 UPDATED: June 23, 2014 10:57 am PUTRAJAYA, June 23 — Malaysia’s highest court ruled today that the Catholic newspaper The Herald has no grounds to appeal a lower court’s decision preventing it from using the word “Allah” to refer to God.
The landmark decision on a divisive issue that has fuelled intense debate and heightened religious tensions in the country, brings to an end the Catholic Church’s challenge in the Malaysian court system.
A seven-member bench at the Federal Court decided by a narrow 4-to-3 majority to deny the Catholic paper the right of appeal.
“The Court of Appeal was right to set aside the High Court Ruling,” Chief Justice Tun Arifin Zakaria told a packed courtroom this morning, upholding the lower court’s decision last year which overturned a high court ruling from 2009 allowing the paper to use the word as a constitutional right.
The legal dispute has been in the courts for the last six years after the Home Ministry banned the publication of the word “Allah” in the Herald’s Bahasa Malaysia section in 2007.
One dissenting judge, the Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum told the courtroom that the home minister’s decision in 2007 disallowing the Catholic paper from using the word ‘Allah’ may have been flawed.
“The minister’s power is not entirely subjective. He must give evidence to support the claim of a threat to public order,” he said.
Last year, the Court of Appeal had ruled that “Allah” was not integral to the Christian faith and could confuse Muslims as well as threaten national security and public order.
The Catholic Church had argued that Christians in Sabah and Sarawak had been using the word for centuries.
The Catholic Church took the case to the Federal Court seeking the right to appeal the decision, culminating in today’s rejection.
They argued that the lower court hadn’t used the right test to reach its decision.
The bid to appeal the appellate court’s October ruling was opposed by nine respondents, namely the Home Ministry, the government, the Malaysian Chinese Muslim Association and the Islamic councils of six states.
Muslims make up roughly 60 per cent of Malaysia’s population and Christians around 10 per cent.
Published: 16 June 2014 | Updated: 16 June 2014 5:08 PM
Here we go again. A Malaysian minister is insisting that Malaysia is not a secular state, and that is anchored in Islamist roots because there are the Malay rulers and state Islamic laws exist for Muslims.
But you know what, Mr Minister, we are now in Malaysia and perhaps you should go read your history books.
This country was formed in 1963, and brings together Malaya, Sabah and Sarawak. Singapore was told to leave in 1965.
Jamil Khir is not the first minister to believe that Malaysia is not a secular state and is possibly an Islamic nation because Tun Dr Mahathir Mohamad said as much years ago.
Another minister in the PM's Department, Datuk Seri Mohd Nazri Aziz, said the same in 2012. And Malaysians will continue to hear this figment of their imagination because there are people who want to believe Malaysia is not secular.
The reality is, of course, different. Malaysia is a secular state where the rule of law is supreme. The Federal Constitution is the basic law, not the Quran.
This is a country which practises parliamentary democracy and is a constitutional monarchy. Anyone can become the prime minister or minister, and sometimes that is the reason behind inane pronouncements that we are not a secular state.
But you don't have to go far to contradict the likes of Jamil Khir or expose his ignorance. Just open up the history books and refer to the words of our founding prime minister Tunku Abdul Rahman.
The Malaysian Insider in October 2012 referred to several Tunku Abdul Rahman's statements that Malaysia was a secular state, and not an Islamic one.
He was first recorded telling Parliament on May 1, 1958: “I would like to make it clear that this country is not an Islamic state as it is generally understood; we merely provided that Islam shall be the official religion of the state.”
The Star had also reported Tunku speaking on February 8, 1983 at a gathering to celebrate his 80th birthday, with the headline “Don’t make Malaysia an Islamic state – Tunku”, where he said “the country has a multiracial population with various beliefs. Malaysia must continue as a secular state with Islam as the official religion.”
In the same newspaper, Malaysia’s third PM, Tun Hussein Onn, was reported as supporting his predecessor in rejecting Malaysia being made an Islamic state.
“The nation can still be functional as a secular state with Islam as the official religion,” Hussein said.
National University of Singapore’s Hussin Mutalib had interviewed Tunku for his book, “Islam in Malaysia: From Revivalism to Islamic State”.
In the interview, Tunku said: “There is no way we should have an Islamic state here... The nature of our political parties, our coalition government, our democracy, and our multiracial life are sufficient foundations which can be used to build a prosperous and peaceful Malaysia. Why must we look to Iran and other Islamic states?”
An Islamic state is defined as a country where the primary basis for government is Islamic religious rule, the Shariah law. Article 3 of the Federal Constitution states that Islam is the religion of the federation, and it is used to support the claim that Malaysia is an Islamic state rather than secular.
However, in drafting the Constitution of Malaysia, the Reid Commission had this to say about Islam as an official religion, in its report in February 1957: “The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion and shall not imply that the state is not a secular state.”
The ignorance what Malaysia is, some 50 years after its formation, points to one thing. That we need citizenship and civics classes to know what Malaysia is all about.
It should be a requirement for all, especially those who take the oath of office in Parliament as our ministers. After all, would you find a casino in an Islamic state or a secular one? – June 16, 2014.
By Syed Jaymal ZahiidJune 12, 2014UPDATED: June 12, 2014 02:59 pm
KUALA LUMPUR, June 12 ― Putrajaya intentionally privatised the construction of six state-owned Universiti Teknology Mara (UiTM) campuses nationwide to allow Umno-linked firms to rake in RM8.6 billion of public funds, PKR strategy director Rafizi Ramli alleged today.
The Pandan MP said the move meant the government must pay RM375 million in rent annually for 23 years, according to concession agreements revealed in a parliamentary reply by Prime Minister Datuk Seri Najib Razak on April 10 this year.
Rafizi today alleged that the six concessionaires have ties to Umno, the leading party in the ruling Barisan Nasional coalition.
“These concessionaires are all linked to Umno. Some are Umno leaders. As if it is not enough that they have gotten rich (from other contracts) now they are getting billions from UiTM,” he told reporters in Parliament lobby here.
“This is the continuation of the 'piratisation' of public funds by the Umno-Barisan Nasional government,” he added.
The Pandan MP noted that the government could have saved more than RM6 billion if it had built the campuses instead of leasing it to the concessionaires.
“In the case of the six campuses, the rakyat will have to bear the cost burden five times more expensive (thecost of buildingthe campuses is only RM1.8 billion but the rakyat have to pay RM8.6 billion to the concessionaires)”.
Each campus is estimated to cost between RM280 and RM315 million, according to the same reply given by Najib on April 10.
Rafizi also noted that the total amount of rent paid to the concessions will eat up a whopping 11 per cent of the total amount allocated to UiTM by the federal government.
Rafizi said he will reveal the names of those behind the concessionaires next week.
“They are Umno leaders or popular cronies that hold positions in Umno,” he said.
UiTM is owned by MARA, a Bumiputera fund set up to boost the economic standings of Malaysia's ethnic majority as part of the race-based affirmative action New Economic Policy conceived in the 60s.
Until recently, more progressive Malay opposition leaders have suggested a revamp in MARA's direction ― that the fund be used to help the poor regardless of race including the opening up of UiTM to poor non-Malay applicants.
The idea met fierce opposition from Umno's hardliners who labeled the proposition as an attempt to undermine Malay special privileges.
Rafizi said today the revelation that Umno cronies were profiting MARA projects were proof that the Malay party was “never interested in safeguarding Malay interest but is using it to enrich their cronies instead”.
From missing airplanes to jail-bound opposition leaders, Malaysia has recently made international headlines for all the wrong reasons. Will the nation's economy be next?
That's the thrust of new report from Sarah Fowler of U.K.-based Oxford Economics, which ranks Malaysia the "riskiest country in Asia of those we consider," more so than India, Indonesia and even coup-happy Thailand. On the surface, she points out, all's well: Growth is zooming along at 6.2 percent, the external balance is reasonably sound and political stability reigns. But all's not what it seems. "Prompted by its high levels of public debt, rising external debt and shrinking current account surplus, there has been a shift in the perception of risks towards Malaysia and away from Indonesia," Fowler explains.
Malaysia wasn't included in Morgan Stanley's "fragile five" list of shaky emerging economies last year, as were India and Indonesia. But Fowler scratches at a number of Malaysian vulnerabilities that deserve more attention: external debt levels that in recent years have risen to close to 40 percent of gross domestic product; a higher public debt ratio than India; the biggest short-term capital flows among the 13 major emerging markets Oxford tracks, including Indonesia; and a shrinking current-account surplus.
This last point is still somewhat of a positive. As the mini-crises in developing nations last year demonstrated, a balance-of-payments surplus is a very good thing to have. Also, Malaysia's use of so-called macroprudential policies has succeeded in preventing huge property bubbles of the kind afflicting Singapore and Hong Kong. ButMalaysia's current-account surplus is dwindling, from 16 percent of GDP in 2008 to 3.7 percent last year. And household debt is, to use Fowler's words, "worryingly high" at more than 80 percent of GDP compared to less than 60 percent in 2008.
What really concerns Oxford, and myself, is the complacency factor in Putrajaya. Malaysia is effectively a one-party state, having effectively been ruled by the same party for six decades. Its 40-year-old, pro-Malay affirmative-action program chips away at the country's competitiveness more and more each passing year. The scheme, which disenfranchises Malaysia's Chinese and Indian minorities, is a productivity and innovation killer. It also has a corrupting influence on the political and business culture.
"A climate of entitlement amongst the Malay community limits entrepreneurialism and vested interests within the United Malays National Organization still resist change," Fowler argues.
The need for change is becoming acute, though, as China's dominance grows and neighbors like the Philippines get their acts together. Indians just elected the party of reform-minded Narendra Modi and Indonesians will soon choose a successor for Susilo Bambang Yudhoyono in a contest that's all about reducing corruption and improving governmental efficiency. And Malaysia? Well, Prime Minister Najib Razak's lackluster party is clinging to power. Meanwhile, opposition leader Anwar Ibrahim may soon be in jail again on sodomy charges many see as politically motivated.
The government's handling of Malaysian Air Flight 370 said it all. Its deer-in-the-headlights response to the plane's disappearance was the product of an insular political culture. The trouble is, that insularity is holding back a resource-rich economy that should be among Asia's superstars, not its weakest links.
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The Islamic Renaissance Front (IRF) feels that the challenge by Pembela was a non-issue since anybody who reads the law and Constitution would know that the word secular was never mentioned in the Constitution. Ipso facto the word secular does not need to appear in the federal Constitution since the interpretation is made by the contents of the Constitution.
Therefore we have heard the debate on the nature of this country for decades among the legal experts and also the academics. Along its course many have expressed their opinion on the status of Malaysia and IRF has been actively involved in the discussion and stated its position many times including at the forum by the Bar Council on "How Secular Is Our Constitution?"
It should be reminded that there are different types of secularism in which Malaysia endorses the positive one in order to protect the variety of religions cohabiting on its territory.
With that type of secular approach, the government does not deny the inherent right of its citizens to profess any religions equally supports them and protects their other rights including the right to participate in public life and civil service irrespective of their religious denomination. This is an ideal construction, which was implemented in Malaysia with some asymmetries due to the special historical conditions.
First of all, two different abodes should be addressed, the legal sphere and the real practices, which do not always necessarily coincide.
For the "Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void".
Now compare this statement to that of an Islamic State, where the Qur'an is supposed to be the highest authority.
Instead, the validity of the laws is measured upon the yardstick of the Constitution and not on Islamic principles, thus making the Constitution a secular one.
To some extent race and religion interfuse the document in a way that scream "different treatment for different people" would seem out of place with the growing zeitgeist of the time.
However, considering the socio-political situation at the time, with an indigenous population feeling overwhelmed both in numbers and in economic disparity, the nature of the Constitution can be accepted as an understandable compromise.
Yet, if one were to examine the Constitution as a whole and if one were to also study the history behind this seeming paradox, then what can be discovered is that at the heart of this "supreme law" of the country, and arguably at the heart of the founding fathers of the nation, lays a desire to create a pluralistic and equal society.
Article 3 of the Constitution reads: "Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation". Now, does this phrase mean that Malaya was to be an Islamic state? The answer is clearly in the negative.
On page 73 of the Reid Commission Report of the Federation of Malaya, the Constitutional Commission upon examining the drafted Constitution says:
"The observance of this principle... shall not imply that the State is not a secular state".
However, the fact that Malaya was not to be an Islamic state is not an assertion made by the Reid Commission, it is an assertion made by the very people who were to become the government of the newly independent nation. Furthermore, when we examine the Reid Commission report once again, we see that the alliance had this to comment
"... in an independent Malaya all nationals should be accorded equal rights, privileges and opportunities and there must not be discrimination on grounds of race and creed....".
Such advantages given to the Malays (the Borneo natives were included only in 1963 when Malaya, Sabah, Sarawak and Singapore created Malaysia) were meant to be a stopgap measure to aid the economically disadvantaged Malays.
Article 3 with regard to Islam as the religion of the Federation was taken to mean that as far as official ceremonial matters are concerned, Islamic form and rituals are to be used. The rulers were Constitutional monarchs with limited real power but tremendous symbolic strength, and Islam was given special symbolic recognition as well as real authority over the personal laws of Muslims.
This does not in any way take away from the fact that a secular pluralistic system of governance, one that valued fundamental liberties, in particular equality, was the aim of the Constitution and also the leaders of the time.
In a landmark case of Che Omar bin Che Soh v Public Prosecutor [MLJ 1988], the then Supreme Court held that laws in Malaysia do not have to conform to the Islamic principles, and confirmed that Malaysia is a secular state.
Real practices of Malaysia, however, have not always been consistent with the legal constructions laid at the dawn of its independency.
What has happened in Malaysia in the last few years is that Islam has been dynamically propelled to the centerstage of politics.
It has become a medium for Malay politics, and political demands for greater Islamic purity have multiplied despite the change in political climate when the ruling government does not hold the two-thirds majority.
The Federal Constitution had put in place the necessary foundations to build a secular, pluralistic democracy with provisions to ensure not only equality but also equity.
Malaysia is and should be a secular state due to the spirit the polity was born with.
Malaysia's Constitution does not define the country as secular as well as it does not call it "Islamic". Meanwhile, the construction laid by the fundamental law and legal practice allows us to come to a conclusion that Malaysia is a secular country.
Hence, IRF argues that the history and the destination of Malaysia are to be a secular state to ensure the rights of its citizens and integrity of the nation.
And only a secular state alone offers them something most of us seem to badly want: freedom.
Meaning to say, if there really is no compulsion in religion, only a secular society can provide that.
And only in a secular system can Muslims be free to practice Islam exactly as they see fit and out of their own conscience, and not state coercion.
And only in a secular system can non-Muslims be at peace without fear of their rights being compromised and eroded. – June 3, 2014.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.