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Why is it so important to have a truly independent Judiciary?

26/04/2017

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Some in the legal fraternity ponder over the appointment of our new Chief Justice recently.  With one retired and the short tenure of the new one, who should take over subsequently?  Like it or not, the CJ can control the judiciary.  Since 1988, the tension between the Executive and the Judiciary is the result – I would say the inevitable result of the doctrine of separation of powers that may “disturb” the affairs of the government of the day.  Legally and strictly under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. In theory, the doctrine constructs a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and none is supposed to trespass into the other’s province.  Furthermore, no arm of government is supposed to abdicate power to another arm.  The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government.

Political theory regard this tension between the arms of power as indicating a healthy and well-oiled, working government.  They do not see the tension as a cause for alarm.  Writing extra-judicially, Lord Woolf has said:

“the tension … is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the Government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance of power between the legislature, the executive and the judiciary …”

Lord Woolf has also said that the tension between the arms of government is:

“… no more than that created by the unseen chains which … hold the three spheres of government in position. If one chain slackens, then another needs to take the strain. However, so long as there is no danger of the chains breaking, the fact that this happens is not a manifestation of weakness but of strength.”

Tension between the Executive and the Judiciary is inevitable. It is unrealistic to think that it can be eliminated. But it can be reduced, if the Executive and the Judiciary recognise that each has a role to perform and that each is better equipped to carry it out than the other.  For the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly.

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GE14 around the corner?

20/04/2017

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I have been often asked when is the next GE. And I always answered only the PM knows.

Apparently after attending some of BN retreats and workshops (and being part of the Naziran team in Selangor), I am inclined to say that they are still very much believe in the 3Ms ie money, machinery and medias as the main strategies to win election.  Yes undeniably these are important requirements but previous results proved there is no guarantee to win comfortably with such strengths.

Some say Umno is prepared to sacrifice seats with a majority of Chinese voters. That is why they decided to concentrate on “focussed seats”.  On how they decide the latter, it is questionable.  I always warn some of the Malay politicians in BN, do not be surprised in GE14 it could be a Malay tsunami. So it is not wise to sacrifice the Chinese and Indian votes.

After the last 2 general elections some Malaysian Chinese as a community appears to have reached a crossroad both politically and socioeconomically.  In an age where democratic values have become a norm around the world and with the increased awareness of liberty and equality as universal values, they look set to settle nothing short of equal treatment among all races in Malaysia (putting aside other issues such as corruption; where ironically some BN leaders see it as only a perception issue).

By now most Chinese community realised that RUU355 or Hudud Pas is all about their political games. Perhaps not some of the Malay community or Umno and Pas members (or they prefer to be ignorant).

They are not prepared or do not want to change. Some especially the division chiefs are still in arrogance mode and of course the same applies to the opposition (the more so in Penang as they can afford to be so).

The reality is majority rules; like it or not it is about the numbers game for the time being. If one is to do the political calculation in depth, BN/Umno is unlikely to be defeated in GE14 especially with the support of rural and East Malaysia voters. As a result Chinese have to live with it or earn their living in the usual ways.

Those who are discontented and have the qualification or wealth could migrate but the harsh fact is most are not able to do so. Brain drain will always be a concern issue.  The country will never truly progress into a developed nation, so long as the conservative and narrow-minded mentality exists.

Sadly the ambition of being truly One Malaysia or Bangsa Malaysia or Malaysia Malaysians is still a long way to go.

Human Rights must be guaranteed but it should not be the only consideration

11/04/2017

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A couple of weeks back, I was invited to speak at Suaram’s new office.  Suaram is an NGO that champion human rights for many years.

In my endeavour along the similar struggles, I am inclined to say that it is impossible and impractical to achieve complete human rights in any country, organisation or a family. It doesnt makes sense though I have profound conviction in defending it.  There must be a balance.

A politician once said:

“Within a system which denies the existence of basic human rights, fear tends to be the order of the day. Fear of imprisonment, fear of torture, fear of death, fear of losing friends, family, property or means of livelihood, fear of poverty, fear of isolation, fear of failure. A most insidious form of fear is that which masquerades as common sense or even wisdom, condemning as foolish, reckless, insignificant or futile the small, daily acts of courage which help to preserve man’s self-respect and inherent human dignity. It is not easy for a people conditioned by fear under the iron rule of the principle that might is right to free themselves from the enervating miasma of fear. Yet even under the most crushing state machinery courage rises up again and again, for fear is not the natural state of civilized man”.

Corruption is one of the cause of traffic accidents

03/04/2017

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To me two of the major obstacles that deter us from moving forward in most aspects are our education system and corruption. The previous is about its quality where it relates to the latter. There must a strong political will to do so. Otherwise it will an uphill task to change the mindset of the 1.6 million civil servants.

Of late there are many fatal accidents involving buses, lorries, boats and even bicycles. It is reported yesterday that a trailer had caused the death of six innocent victims at Hulu Selangor due to its “tayar celup” or “botak” (recycled or bald tyres).

This is not something new. It is becoming a commonplace affair that because of these traffic accidents, resulting in fatalities and casualties, one is no more safe on the road regardless of how careful we are.

Each time I hear the news, I get seized with uncontrollable feelings of bitterness and anger. Every year, there are bound to have such related tragedy due to careless or ignored cause.

So far, we cannot find effective means with which to fight this battle and real law seems able get its teeth into the problem.

On the contrary, as laws combating traffic accidents are filling the books, the scale and severity of such accidents is increasing exponentially. It seems that these laws come to exist, in large parts, just to shift accountability to the unknown and to find no person to point the finger at.

Also quite often the authorities would take stern action once such an accident happens, but it’s back to square one after a while.

There seems to be no genuine will to enforce the related laws and empower them.

I believe a real solution to this problem is there, concealed in the existing gap between the law itself and what stands behind its effective implementation; corruption. Until this link is effectively broken, these laws will always be futile and may even result in the very real possibility of making the situation worse.

Circumventing laws the norm

Corruption is a major obstacle to law enforcement.

Certainly, it is an obstacle to achieving progress in lessening the number and severity of traffic accidents in the country and to which numerous social and economic problems are traced directly or indirectly.

However, either we fail to gain a higher vantage point from which we can see and understand the link between growth and corruption or, we intentionally turn a blind eye to avoid a serious debate about the major perpetrators who benefit from such a corrupt system.

Vehicles such as commercial buses and lorries are good examples. Owners may prefer to bribe the authorities to pass the inspection rather than spend a huge budget to ensure the vehicles are roadworthy.

Hence if we do not recognise and work out the real problem, we will forever remain trapped in a defective, corrupted system that manifests itself in every aspect of our lives and in the most basic ways.

Corruption is the hallmark of a self-destructive society that is befuddled by falsehood. It is not by chance that we have reached this alarming stage of traffic accidents; it is because circumventing laws has become the norm, aside from our tendency to opt for quick fixes and shortcuts.

Traffic rules are respected at the convenience of everyone and the concepts of incentive and punishment are no longer working because corruption opens the doors of impunity in every direction.

Even selective enforcement would indicate that the powerless and vulnerable citizens are at a big disadvantage in a country where all citizens are not treated equally before the law.

哈迪阿旺所提的355法令修正案到底是什么?

09/03/2017

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哈迪阿旺所提的355法令修正案到底是什么?

该法案旨于加强1965年伊斯兰教法庭(刑事权限)法令(355法令)的刑罚。因此,严格来说,它不是伊刑法。

那为什么又有反对意见呢?

如果它被允许修改,可能导致不平等和不公正的问题。 也影响经济,吓跑外国投资者,这种情形在世界各地屡见不鲜。 更重要的是,它与最高法律 –联邦宪法不一致。

修正案已在上次国会提呈,想把刑罚提高到30年监禁、100次鞭笞和10万令吉罚款。

有许多原因说明此法不可取。在刑法上,各州执法当局对违法者的权力应用必须统一。

不过,哈迪的修正案并没有强调这一点。每个州可自行选择刑罚。

现有刑罚有三种:鞭笞、罚款和监禁,每种刑罚的上限都有明文规定,所有州都一样。相比之下,哈迪要修的,其实是倒退之举。

虽然,要提高现有的3-6-5刑罚上限有其合理之处,但一些上限和条款必需明文规定,以免有违宪之误。

有些政客向公众打保单,说修正案只是要强化伊斯兰法庭,无关伊刑法。

这是天大的误导。实际上,它是在为伊刑法开路。首先,我们必须先搞清楚,伊斯兰刑事司法制度到底是如何在马来西亚操作的。所有形式的伊斯兰法律,包括伊斯兰法庭的成立,都是源自《联邦宪法》州事务表(State List)第1项目。

接着,为了将这种管辖权授予伊斯兰法庭,国会颁布了该法令。 简而言之,国会凭其智慧赋予伊斯兰法庭权限审判所有违反伊斯兰教规的罪行,但惩罚的轻重必须在国会规定的限度内。

这里有两个概念:罪行与惩罚,两者之间有个重要的区别。

国会只是制定惩罚的界限,至于罪行范围则是由各州州议会制定,这是该法令的主要目的。国会只提惩罚,没明文规定那些罪行伊斯兰法庭有权管辖。

换句话说,只要是罪行的惩罚在国会规定的界限内,州议会可依据州事务表第1项目,制定任何违反伊斯兰教规的罪行范围。

修正案不需特地使用“伊刑法”(Hudud)或其他相关罪行的字眼。只要它提供的惩罚符合伊刑法,那州议会就可自由制定伊刑法罪行。

如上所述,我认为,在任何情况下,制定这种罪行都是违宪的。

修正案不需提伊刑法,它都与伊斯兰党伊刑法有关。

它是在2015年我们的法律挑战被驳回后,巧妙地计划和起草的。

所以,其动机含义再清楚不过。该修正案就算是修改后再提呈,仍然让伊斯兰党伊刑法得以实施。

再者,它不单只限于吉兰丹。每个州都会受影响。伊斯兰法庭的权限若伸延到这种程度,将动摇联邦宪法的基本结构。

刑法是联邦宪法事务表下的事。 马来西亚以联邦体制立国,联邦政府比州政府具有更大的权力。 正因如此,两者若有不一致之处,必须以联邦宪法为重。 如果伊斯兰教法庭被赋予这么广泛的权力(在鞭刑方面其权力甚至比民事法庭更大),形同不顺从国会在刑法问题上所拥有的权力。 我们必须记住,民事法庭在这方面拥有最高权力。

如果通过哈迪的修正案,无疑是允许两法平行或双重的刑事法律制度,这明显违反了联邦宪法。

也很显然的,哈迪提出RUU 355法令修正的方式引起很多怀疑。 从一开始他就非常谨慎地处理,之后修改了几次。 原来提出的法案是给予伊斯兰教法庭无限权力惩罚, 随后的变化是试图使其不违宪。

此外,他也从来没和伊斯兰学者、执法当局、机构(如Majlis Dakwah Negara)、理事会,甚至是掌管伊斯兰事务的最高机构 — 统治者会议协商。

哈迪没有引用任何研究或报告来支持他的观点,以证明加重刑罚足以摄制和减少违反伊斯兰教规的罪行。 他也没给予充足理由为何需要该法案,除了授权伊斯兰法庭处理上帝的律法。

任何拟议的改革必须是通过循证决策的,而不仅仅是修辞功夫或政治手段。

所以有些人称它为伊斯兰党的伊刑法。

 

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Let’s move forward…

20/02/2017

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Last Saturday I attended and spoke in a “No to RUU355” rally organised by Bebas.

The reason I agreed to be there has nothing to do with Islam.  Growing up in a national school, I always see Islam as a beautiful religion.  It is because Hadi’s 355 Bill will pave way for the implementation of Hudud Pas.  Pas has never consulted any independent religious scholars or related parties. Not even the Conference of Rulers who are the Heads of Islam.  Though it is Hadi’s democratic right to table his motion, the manner he did it from day one has been suspicious.  It was done discreetly and amended several times.  The Constitution has provided the requirements if he wants to implement Hudud Pas but he did not follow.  Instead he chose to amend Act 355.

First and foremost I want to express my appreciation and gratitude to all who have encouraged and sent the related news, pictures & videos as well as those who criticised and condemned me.

There have been 2 schools of thoughts on the argument whether is RUU355 is Hudud Pas or not.  Similarly on the constitutional aspect of it.  I am not going to touch on it anymore as to me or most of us, it is obviously being politicised.

There are comrades within Gerakan, for some obvious reasons criticised and disagreed with our participation at the rally yesterday. One of them even requested Gerakan President Datuk Seri Mah Siew Keong to expel me.

The reasons given are it is unjustified for me to attend and speak at the rally. The number game (which we anticipated) will show that we are fools to be exploited by certain people or the organiser.

The medias will give an impression that majority of Malaysians will support 355 or Hudud.

Hence I will caused the party to lose support from the Muslim voters especially from Umno and Pas. To them it is foolish to have profound conviction on our ideologies and beliefs at the expense of the latter.

Well, did we not have the support of Umno in the last 2 general elections? Did we not go against PAS?

We realised from the beginning that our side will be outnumbered but to me it is not the number that matters. It is a matter of our integrity and sincerity in pursuing our struggles.

* Special thanks to the Gerakan legal team (Ivanpal S. Grewal, Jayanthi Devi Balaguru, KT Chai & Ong Siang Liang ) as well as 26 other comrades and 3 members of BKC who turned up and believe in our struggles.

Coming back to the question of number, what can we expect when the organiser is a NGO (Bebas) compare to Pas, a national political party that governed the state of Kelantan as well as Selangor?

Are the people of Malaysia will be so ignorant to think that majority in the country support RUU355 or Hudud Pas?

Ironically a Dap leader challenged me to leave BN but except for Zaid Ibrahim, I dont see any of them there. And why are they still running the Selangor state along with Pas?

Similarly many from other political parties, associations and guilds (except for Federation of Hokkien Associations) voiced their objection against Hadi’s Bill previously. But why didn’t they support the cause now? Fear of persecution etc? Fear of losing support politically?

However I strongly believe many especially those in the urbans, though of different faiths and background support this noble cause and want Malaysia to remain a beautiful and peaceful secular nation.

To those who condemned me as enemy of Islam, let me reiterate; it is never about going against Islam. I have many close and good Muslim friends. Some of them even supported me. They know the whole episode is being politicised.

To those critics who are against me or merely want to be subservient to Umno or Pas for obvious reasons, I am speechless.

At the end of the day, to me/us it is about the betterment of our future generations. It is about defending our Federal Constitution. We can’t compromise on these…period.

 

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Have a joyful, blessed & prosperous Lunar New Year 2017

27/01/2017

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