Power corrupt, too much power is dangerous

by

K.Siladass

The clarion call by the Chief Justice of Malaysia Tun Ariffin Zakaria is timely and has been made at the most appropriate time.  We are aware of the time honoured idiom: Power corrupts, absolute power corrupts absolutely. When power is vested in one person with diverse responsibilities, the natural tendency would be that person would not be able to devote much time to the problems that surface from time to time. Thus, when we try to understand the idiom, power corrupts, absolute power corrupts absolutely – what it means is that the person vested with too much power leading to absolute power will not be able to exercise it diligently; or, having too much power on his plate he is unable to exercise it prudently: therefore, the inability to act in a manner consistent with situation that arises from time to time could result in abusing power and in the extreme sense abusing it absolutely.

To put it in a nutshell, the failure or omission to act diligently as the circumstances demand could by itself mean abuse of the power. In other words, it is not only the exercise of the power in a manner inconsistent with the case that could lead to abuse of power but the omission or failure, whether it be deliberate or due to extraneous circumstances, should be classified as abuse of power.

The current position of the Attorney-General (AG) appears to be that he is unable to exercise his legal discretion in a manner befitting his high office. In the circumstances, it would be appropriate that the judicial and legal services be led by two different persons. The present position is that, the AG being the head of the prosecution and the head of the judicial services (Magistrates and Session Court Judges) is illustrative of the elements of bias seeping in and the steady stream of the judiciary polluted by suspicion that the judicial services cannot go against its own head.

Lord Denning advice would be apt at this juncture. He said:

“The keystone of the rule of law in England has been the independence of the judges. It is the only respect in which we make any real separation of powers. There is here no rigid separation between the legislative and the executive powers: because the Ministers, who exercise the executive power, also direct a great deal of the legislative power of Parliament. But the judicial power is truly separate. The judges for the last 250 years have been absolutely independent. And when I speak of judges, I include not only the High Court judges, but also all the magistrates and others who exercise judicial functions. No member of the Government, no member of Parliament, and no official of any Government Department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges- and I would add also the chairmen of tribunals when they are independent of the executive, for then they too are judges. It does not depend on the name “judge” or “chairman” but on the substance. The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.”

(The Changing Law, Sir Alfred Denning, Second Impression 1953, pg 4)

The word “Parent” in Article 12(4) of the Federal Constitution

by

K.Siladass

          Article 12(4) of the Federal Constitution says that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. (italic mine)

          According to the Oxford English Dictionary, the word “parent”  has been defined as “a father or mother”  (see Oxford English Dictionary Volume XI, at page 222). The emphasis is on the word “or” which indicates that a parent could be either a father or mother. This is the general definition, and it is consistent with the natural relation between a parent and his or her, or their, offspring.

          The Kamus Dwibahasa Oxford Fajar defines the word “parent” as “ibubapa”. The conjunctive “atau” (or) is omitted. The omission of the conjunctive word “or” is baffling.

         

          It is common that ordinary dictionary definition of words could be different from the definition attributed to certain words in an Act of Parliament or a State Enactment. Thus, it is not uncommon that every statute would carry a section defining certain words to avoid confusion in the construction of a sentence within a particular context. Thus a word may indicate a meaning different from traditionally accepted dictionary versions. Aside this, there is also the Interpretation Acts 1948 and 1967 which assign meanings to words used in the statutes in general, and in a particular manner.

          What has been troubling the judiciary, the legal profession and the public generally is the word “parent” expressed in singular in Article 12(4). How do you define it? Is it rigidly singular, meaning any one parent can decide the religion of a person under the age of eighteen years, or, the expression “parent” in singular includes the plural meaning, “parents”. In other words would one parent’s consent be satisfied under Article 12(4) or both must consent?

Article 160 of the Federal Constitution deals with interpretation, and it provides specific meanings to words used in the Constitution. Article 160(1) refers to the Eleventh Schedule to the Constitution and states that the meanings given there shall apply. And the Eleventh Schedule states that the “words in the singular include the plural, and words in the plural include the singular”.

In this context section 4(3) of the Interpretation Acts 1948 and 1967 states the same eg.:

“Words and expressions in the singular include the plural, and words and expressions in the plural include the singular.”

And the Bahasa version states:

“Perkataan dalam bilangan tunggal termasuklah bilangan jamak, dan perkataan dalam bilangan jamak termasuklan bilangan tunggal.”

Going by these definitions, where words and expressions are in singular they include plural and plural include singular is constitutionally and commonly accepted legal position.

          The Constitution which was in English was translated into the National language and to give effect to the translation Article 160B was inserted, which came into effect on 28 September 2001. It reads:

         

“Where this Constitution has been translated unto the national language, the Yang di-Pertuan Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or discrepancy between such national language text and the English language text of this Constitution, the national language text shall prevail over the English language text.”

The Bahasa version is as follows:

“Jika Perlembagaan ini telah diterjemahkan ke dalam bahasa kebangsaan, Yang di-Pertuan Agong boleh menetapkan teks bahasa kebangsaan itu sebagai teks sahih, dan selepas itu, jika ada percanggahan atau perselisihan antara teks bahasa kebangsaan itu dengan teks bahasa Inggeris Perlembagaan ini, teks bahasa kebangsaan itu hendaklah mengatasi teks bahasa Inggeris itu.”

          The English expression of the word “parent” in 12(4) read together with the Eleventh Schedule and Section 4(3) of the Interpretation Acts 1948 and 1967 would have cleared any confusion; but, confusion did germinate with the translation of the Constitution. Particularly, the word “parent” has been translated as “ibu atau bapa” (mother or father). The National language version is as follows:

“Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu atau bapanya atau penjaganya.” (italics mine)

When this Bahasa version clause is translated into English it would read:

         

“For the purposes of clause (3) the religion of a person under the age of eighteen years shall be decided by his father or mother or guardian.”

         

          This is clear distortion of the actual wording of 12(4), and it was not the intention of Parliament to deprive one parent the right to decide if a person under eighteen years old. Thus the broad and objective meaning of the word “parent” was lost in the translation.

         

          The vast difference between the English version and Bahasa Malaysia version of Article 12(4) has been the source for the confusion that had troubled the judiciary and the legal profession for far too long. The English version when read together with Article 160(1) and the Interpretation Acts 1948 and 1967 clearly points to the fact that the religion of a person under the age of eighteen shall be decided by his parents. But, when we read the Bahasa version of Article 12(4) either father or mother could decide the religion of a person under the eighteen years, the original effect and intention had been lost. Common sense would dictate that the intention of Parliament in formulating clause 12(4) was to empower both parents and not to a single parent to decide the religion of their child under eighteen years old. For the sake of argument it could be said that a single parent could decide the religion of a person under eighteen years if one of the other biological parents, or one of the legally adoptive parents had died. In the case of an illegitimate child only the mother has the right to decide on the child’s religious status, not the father.

          One would wonder as to how did this legal pickle come about. The translator, it would seem, had chosen the direct meaning of the word “parent”  without looking at the confusion that may entail. It would also seem that the translator had not considered the multi-racial and multi religious composition of the Malaysian society. On the other hand, the framers of the English version of the Constitution, and in particular Article 12(4) did not appreciate that religious sentiments could seep into simple words and be the source for painful legal wrangle and predicament. To confound the problem we have the Istilah Undang-Undang which omitted to define the word “parent” but defined the word “parents”  meaning “ibu bapa”.

          The next level of confusion could be seen in the State Enactments. In the State Enactments relating the Administration of Islam most of the States use the words “ibu atau bapa” to consent the conversion of a person under eighteen years old. Penang, Selangor, Sabah use “ibu dan bapa” to consent the conversion of a person under eighteen years old.

          The error in the translation of Article 12(4) is too obvious whereby the translation has ignored the changing nature when words are expressed in singular or plural. The English version, in its original form, allowed the inclusion of both parents whereas the Bahasa version excluded one parent, be it father or mother. By this translation, the objective of the meaning of the word, in singular or plural has lost its significance.

         

Even though the error is glaring at us, there are some who hold that the consent in Article 12(4) could be from either parent based on the Bahasa version of that Article, and reliance is placed on Article 160B which states that where there is a conflict or discrepancy between such national language text and the English language text of the Constitution, the national language text shall prevail over the English language text. If this provision is followed, it means that a wrong could be perpetuated notwithstanding the injustice it could cause. Parliament could and should correct this. On the other hand, it cannot be said that the courts are bound by the wrong translation. The courts could right the wrong bearing in mind the intention of the legislature which must have considered the multi-racial, multi-religious composition of this country, and the likelihood of conflicts surfacing between parents from time to time in consequences of one parent converting to Islam and the other electing to remain in the original faith.  Therefore, to cling on to the flawed translation reminds us of Humpty Dumpty’s arrogance.

“I don’t know what you mean by ‘glory’,” Alice said.

Humpty Dumpty smiled contemptuously, “Of course you don’t- till I tell you. I meant “there’s a nice knock-down argument for you!”

“But “glory” doesn’t mean “a nice knock-down argument”,” Alice objected.

“When I use a word,” Humpty Dumpty said in a rather scornful tone, it means just what I choose it to mean – neither more nor less.”

(Through the Looking Glass. Lewis Carrol – The complete Works, p. 174)

This is precisely what is happening in interpreting Article 12(4).

HADI’S BILL AND THE CONSEQUENCES

by

K. Siladass

Prime Minister Datuk Seri Najib Razak’s explanation on the private member’s bill submitted by PAS President Datuk Seri Abdul Hadi Awang is a gloss with all its trappings to mislead Barisan Nasional component parties and the general public.

          Najib says that they (Barisan Nasional component parties) see the private Bill as hudud laws. He went on to explain that the Bill was on reforming the punishment meted out by the Shariah court. Hadi himself has said that non-Muslims need not fear the implementation of hudud, as it was only for Muslim. Hadi went on to cite Banda Acheh in Indonesia as an example where, many non-Muslims had chosen to be tried under the Shariah law, even though they had the option to be tried under civil law (NST 28 May 2016). The real intention is out, and that is, the Bill to increase penalties for Muslims if passed would give PAS and its supporters, including UMNO, the impetus to introduce hudud in a larger scale and eventually it will be implemented throughout the country.  

          We must not forget that when amendments were introduced in 1988 to remove the judicial power from the High Courts under Article 121 of the Constitution, and the introduction of a new clause 121(1A), the objective was to overcome some disturbing decisions by the Civil Courts, so said, the then Prime Minister Tun Mahathir Mohamad (then Datuk Seri) when speaking on the proposed amendments. But experience has shown that the entire amendments were distorted and different interpretations were given, thus the harmony that exited in religious matters became too complicated and then began the hate culture, the culture of arrogance, in that no one could challenge any wrong that had been committed.

          It is therefore important that no one should take Najib’s words for granted, or for that matter UMNO. UMNO is known for reneging on the promises it makes. Najib is not any better. Once bitten twice shy. The 1988 amendments are still afresh in our minds, and the aftermath had seen justice being denied, and we do not want another judicial stalemate. Hadi’s Private Member’s Bill must be rejected. It has no place in a multi-racial and multi-religious Malaysia, and it is against the Constitution which has, right from its conception, maintained that every person is equal before law. It would be appropriate to recall the story of the camel and the Arab. The camel, because of the cold outside, asked permission to put its nose inside the tent to which the Arab agreed, eventually the whole of camel’s body was inside the tent, which had no place for two, and the Arab was kicked out. Hadi’s Private Bill to enhance the punishment is the initial move, and he himself has admitted that at the end it is hudud for whole Malaysia which was not the intention of all the people when Merdeka was achieved in 1957 and the creation of Malaysia in 1963. 

A GLIMMER OF HOPE?

by

K.Siladass

         

Mohd Sharif bin Abdullah applied to the National Registration Department (NRD) to change his religious status on his identity card which described him as a Muslim. Mohd Sharif’s earlier action in the High Court to remove the word was dismissed, so also his appeal to the Court of Appeal. Now, the Federal Court has dismissed Mohd Sharif’s application for leave to appeal to itself. The exact judgment of the Federal Court was not available at the time of writing this note. However, the brief report in the MalayMail Online gives a good narration of what had happened.

          Mohd Sharif was a Hindu by birth, thus the description “Hindu-born”. Mohd Sharif claimed that, when an identity card was issued to him the NRD had relied on an application that had been filed by his mother. There is no indication, in the brief story, as to the religious status of Hindu-born Mohd Sharif’s parents.

          In refusing leave, the Federal Court unanimously decided that based on the facts, Mohd Sharif should seek a declaration that he is not a Muslim. Apparently there had been an administrative error, for there was no conclusive evidence that Mohd Sharif had ever converted to Islam. There was also the observation by the Chief Justice of Malaysia Tun Arifin Zakaria that there was no certificate that Mohd Sharif had converted to Islam: therefore, without that certificate of conversion Mohd Sharif cannot be a Muslim. Mere “registration as Muslim does not make you a Muslim” so observed the learned Chief Justice. The NRD had issued the contentious identity card when Mohd Sharif was 12 years old on an application made by his mother. So, it was not a case of conversion or a challenge to the improper conversion; but, a case of mistaken description of Mohd Sharif’s religious status on his identity card.

  

In the light of these circumstances the Federal Court indicated that Mohd Sharif should seek a declaration.

The next question is which court has the jurisdiction to make a declaration that Mohd Sharif is not a Muslim. Firstly, a declaratory relief could only be granted by the High Court as it is the only court which is empowered to grant such reliefs. This can be gleaned from the Courts of Judicature Act 1964, sections 23, 24 and 25. The Shariah Court’s jurisdiction does not cover declaratory reliefs. Besides, its jurisdiction only extends to Muslims but not non-Muslims. This too is clear from the learned Chief Justice observation.

The position of “Mohd Sharif” is that he is not a Muslim; but by an administrative error his religious status had been described as Islam. This is not case where “Mohd Sharif” is leaving Islam but exercising his constitutional right to correct a mistake on his identity card. Therefore, Shariah court is not the correct forum to correct this error.

It may have been proper that the Federal Court could have exercised its inherent powers and rectified the administrative error. However, in democracy, rule of law is important and has to be strictly observed. The decision which carried the advice to seek a declaration is correct and consistent with the rule of law and the Constitutional provisions.

MIC LEADERSHIP TUSSLE

by

K.Siladass

         

When there is a leadership tussle in a political party, or there arises a dispute between the members of a political party such leadership tussle, or the members’ dispute should be settled by the political party’s own members. The rules of a political party, would provide the mechanism as to how any such dispute should be resolved. Contrary to the established rule drastic change was introduced by the former Prime Minister Tun Dr Mahathir Mohamed’s government whereby a provision empowering the Registrar of Societies to intervene in the affairs of a political party if there is a dispute in the manner that party is managed. This provision could be scandalously abused when a member, to satiate his own selfish ends, makes unfounded allegations thus invoking the Registrar’s intervention.

          In 1960, one Tharmalingam brought an action against the then MIC President V.T. Sambanthan, in which the former claimed that his dismissal from the party was illegal and that he be reinstated. Tharmalingam had in fact ignored the MIC rules governing this sort of complaints, which is in fact domestic inquiry, and had gone directly to court for remedy. In this context the then Chief Justice Thompson said that, Tharmalingam should have come to court after the “MIC Gods” had dealt with his grievances. [see Tharmalingam v. Sambanthan (1961) MLJ 63].

If we look at the laws as they are in relation to the affairs of political parties it would seem that the Registrar is the present God.

          There is currently a dispute in MIC as to which faction commands the support of the party members and who is the de facto President. Elected President of MIC Dato Sri Palanivel has had been removed, in fact dismissed, from the party in the pretext that he has contravened MIC’s constitution.

          The present position in the light of the current impasse in MIC is that it is not that MIC members who are unable to find a solution but there is no mechanism to solve it when a tussle of this magnitude springs up. The help of the Registrar is needed, purportedly an independent authority. The question is: would the Registrar of Societies act impartially? In a time when the number of little Napoleons has rapidly increased the views of the Registrar of Societies, whether in writing of otherwise, could attract considerable controversy. The ROS should not lend his ears to one side and come to a conclusion which could result in being challenged in court. Besides, it would be patently wrong to allege that what the Registrar has stated in his letter is final. The Registrar may say many things clouded by the lopsided comments, and unfounded allegations. There could be no basis for such a claim. In fact, the ROS has not the power to terminate the membership of a party member.

It is now claimed that Dato Sri Palanivel, by going to court, has ceased to be a member of MIC. Those who so claim rely on Article 15.6 read together with Article 91 of the MIC Constitution.

         

Article 91 reads as follows:

“Every member shall be bound by the decision of the Central Working Committee in matters relating to his rights, obligations, duties and privileges as a member of the Congress. If he resorts to court proceedings in respect of his rights, obligations, duties and privileges or on behalf of any other member or in respect of the rendering or meaning of the provisions of this Constitution without first referring to the Central Working Committee or in violation of any decision or directive if the Central Working Committee he shall ipso facto cease to be a member of the Congress and shall not be entitled to exercise any of the rights of a member.”    

And Article 15.6 reads as follows:

“Any member who resorts to Court proceedings in breach of Article 91 shall cease to be a member.”   

          The effect of article 91 is that every member shall be bound by the decision of the Central Working Committee. In Palanivel’s case the Central Working Committee has not made any decision which would, in case of any contravention, result in the said provision being invoked. Palanivel has made an application to the High Court, for judicial review as against the ROS. In other words, ROS has made certain decisions which affect the party not an individual. Palanivel wants that wrong to be remedied. It was not an action against MIC or its members, or over any decision MIC’s Central Working Committee had made. It is simply a matter where the ROS had made a decision without consulting the person affected by his decision. Strictly speaking the ROS is in breach of the rules of natural justice as he had failed to give an opportunity to Palanivel to explain a properly formulated charge. Or, the ROS has exceeded his powers; or, that the ROS is bias. Besides, the ROS seems to have believed what Palanivel’s opponent had said, which should have been tested critically and with opportunity extended to Palanivel to explain or challenge the allegations levelled against him. But, what is he guilty of? Seeking legitimate redress for the wrong decision of ROS which could affect the party as a whole is not within the contemplation of Article 15-6 read together with Article 91 of MIC’s constitution.

          In the circumstances it would be wrong to conclude that Palanivel has lost the membership of MIC.

COMPARISON OF RELIGIOUS BELIEFS

Comparison of distinct religious beliefs could be interesting if it is pursued with an open mind to discover the unifying thread of all faiths; but, it can turn out to be dangerous, harmful and catastrophic if the comparison-exercise, while extolling the grandeur of one’s own religion, is aimed to ridicule, undermine and abuse other faiths. Based on this premis, comparison of religions could be an unrewarding, futile exercise if it is done to promote disbelief and pave way to inject hatred against other faiths.

We must admit that unreasonable differences in religious belief are very real, but, when you are talking about the faiths, one cannot discard the dangers that are so inherent because of prevailing warped notions: especially when a faith takes the position that its dogmas are superior to others, forgetting that beliefs are simply beliefs.

Perhaps it is because of this inherent human weakness in religious matters Article 3(1) was entrenched in the Federal Constitution. A very unique provision which states that Islam is the religion of the Federation, and adds in no unequivocal term that other religions could be practised in peace and harmony in any part of the Federation. It could be seen that Islam being the religion of the State, other religions’ protection is guaranteed.

The secure constitutional protection of Islam in the Constitution is burdened with a unique responsibility and that is, Islam has the duty to protect the religions of minorities. It is clear, then, the religions of the minorities should not be questioned and their faiths cannot be called in question, and most importantly there should be no condemnation of other religions’ existence.

It follows, therefore, Malaysia and all its member States have the paramount duty to ensure that the foundation of religious harmony envisaged in Article 3(1) is preserved. Those who venture to condemn and criticise other religions are doing so out of spite and in violation of Article 3(1) and other provisions in the Constitution which guarantee the existence of all religions. And those who transgress these protective constitutional safeguards cannot be regarded as persons with noble intentions. They, indeed, are perpetrators who work to retard mutual understanding and harmony among all faiths. We must make it plain that those who do not appreciate the fragile racial and religious balance in this country, its significance, dignity and worth are indeed ignoring human values.

                                                                                                                                      K. Siladass

Valuation of Immovable Property

by K. Siladass

         

          When a person wants to buy a house there are few things he will have to consider, and the most important facts would be whether the house is sold free from encumbrances, whether the price asked for is reasonable compared to other properties in that locality. When it is a house which is for sale the question is whether it is vacant or it is occupied. The price of a house would much depend on various factors, especially, whether the sale is with vacant possession or without it. If there is a tenant occupying the house, the value will depend on the desire of the buyer: whether, he wants it for his own occupation or he is just buying it as an investment. If the buyer is thinking to occupy the house upon completion of the sale the price would be higher. On the other hand if the house has been tied down with a tenancy for a long period the chances are that the buyer who wants immediate occupation would not venture to buy. If it is an investment the buyer will consider the duration of the tenancy, if it is too long then, his investment will not be too lucrative considering the fluctuating temperament of the property market. The value may appreciate but that is a long term plan. For the immediate purchase the price of the house would not fetch a higher value because of the sitting tenant.

          It is possible that the willing seller is tied down with a long tenancy may sell the house to the sitting tenant at price less than the market value because the owner need not go into the cumbersome process of getting the tenant out.

          If the price is agreed and the parties conclude the sale and purchase, say for three million ringgit, documents would show that amount; but, when it is submitted for valuation, the valuation office would have their own value. They do not consider the tenancy of the house and its value. Therefore, if the valuation is more than the sale price, it does not mean that the purchaser has bought it at a lower price. If that is the case at least fifty percent of property transactions in the country would be subjected to adjustment of the sale and purchase price after valuation by the valuation department. Are we going to say that the sale price to be adjusted according to the valuation? Ludicrous.

         

Assuming that the government valuer values the property less than the sale and purchase price could the buyer turn to the seller and say that he has paid more than the actual value, therefore, there should be an adjustment on the price? Unheard of. Only those with warped thoughts would venture into this type of unrewarding exercise with the hope of political gains. It is just lying on one’s back and spitting. You know where the spittle will land.           

Parliamentary Privilege

by K. Siladass

         

          Although a member represents one parliamentary constituency needless to remind that his or her duty, obligation and responsibility are towards the country. He has to protect the integrity of the august house. Furthermore, it must be remembered that members of Parliament represent the people who had empowered them to enact laws for the good and safety of the country, and of its people. It is, therefore, incumbent of every member of Parliament to speak the truth, and when he or she says something capable of evoking sensation, or cast aspersion on any person whether that person is a member of Parliament or otherwise, the member who levels accusation carries the additional burden to prove what he or she said in Parliament is actually true, or that there was reasonable cause which made it essential to bring it to the notice of Parliament, and be brave to face the consequences.

          A legislator must be brave to express the views he feels – genuinely feels – which calls for an explanation and must stand by what was expressed, and most importantly when impugned, must be ready and willing to substantiate what has been said in Parliament, rather that shielding behind parliamentary privilege.

          When a member of Parliament says something which is scandalous, the immediate reaction would be for the person affected, whether a member of Parliament or not, to challenge the member who uttered the defamatory statement to repeat them outside parliament relinquishing parliamentary privilege. And if the member who uttered the defamatory statement accepts the challenge, then, the same statement could be repeated at a place out of Parliament. But, not all members who enjoy the protection of parliamentary privilege would be ready to accept the challenge because their motive may not be to elicit the truth, but to sow the seed of suspicion in the fertile ground of malicious falsehood thus confuse the people, therefore, they will not repeat the scandalous, libellous statement outside parliament fearing the loss of privilege and immunity. Such a member who seeks the umbrage of Parliamentary privilege after having made scandalous remarks cannot be any better than a coward.

          The affected person is not without any remedy. Parliament has the procedure to deal with any unfounded allegation that may be made by any member in Parliament, thus, it would be worthwhile to look at the parliamentary standing orders.

          A case on point is Abdul Rahman Talib v. Seenivasagam & Anor [1965] 2 MLJ 142; and [1966] 2 MLJ 66*, there Seenivasagam, a prominent opposition leader and parliamentarian made a statement in parliament of corrupt practices by Abdul Rahman Talib, a Minister. Rahman Talib challenged Seenivasagam to repeat the statement outside parliament and which challenge was accepted. Seenivasagam repeated what he had already said in Parliament in a public place. In his speech at Chinese Assembly Hall, Kuala Lumpur on 11 September 1963, Seenivasagam stated:

“You allege that I besmirched your character in the House (Parliament). You are wrong, because you could have asked the House to punish me under standing orders with a maximum penalty of $1000 or two weeks jail.”

          Rahman Talib did sue Seenivasagam but lost.

          The House itself in appropriate circumstances take action on its own to preserve its dignity when a member speaks or acts which tantamount to scandalous abuse of parliamentary privilege.

* MLJ (Malayan Law Journal)

THE SIGNIFICANCE OF CITIZENS' DECLARATION

The country is in turmoil. There are too many demeaning incidents that do not inspire confidence in the present leadership, particularly Dato Seri Najib Razak. Foreign governments are not too comfortable to deal with the present Prime Minister, because his explanations about the money found in his personal bank account varied from one another which is nothing but a clear case of vaccillating. His handpicked Attorney-General believes that he is the law and whatever he says must be accepted. In this regard he treats the whole legal system as being incapable of differentiating between chalk and cheese. An Attorney-General who condones criminal acts is unfit to be one. And in handling Najib's case he has clearly abused the discretionary power he has.

UMNO Baru is split, hence within the country Dato Seri Najib Razak's prestige as Prime Minister is in shambles. His integrity as a leader is questioned. The most important question that looms at large is who needs to be saved? Najib or Malaysia? Who needs to be protected UMNO Baru led by Najib or Malaysia? The answers to both question would be if you love Malaysia, then, it need to be saved. If you love Malaysia, then, it needs protection. Thus, Malaysia needs to be saved from greedy, unscrupulous, and corrupt leaders like Najib. Malaysia needs to be protected from Najib and those who support him. Therefore, the Citizens' Declaration first of its kind in the country's history can only be seen as a genuine effort to save Malaysia from leaders whose motive is self-aggrandisement and unjust enrichment and at the same time the declaration seeks to protect the country and the people from unjust laws perpetuated by Najib and his supporters.

What is remarkable is the fact that the current UMNO Baru is Mahathir's brain child, and its transformation into a political Frankenstein is there for all to see. This Frankenstein under the control of Najib actually caused more damage than one could imagine. It is time the creator of this Frankenstein come out to destroy what he had created. Besides, Najib the Frankenstein is also Mahathir's creation, hence it is only befitting that he leads to ensure that his creation does not cause more irreparable damage.

The signatories to the Citizens' Declaration by mostly of political parties with diverse objectives and non-government organisations can only be seen as  awakening to meet the challenge the unjust course pursued by Najib and his supporters. The significance of the Citizens' Declaration could only mean that its motive is to see a clean, efficient, transparent and fair Malaysian government whose aim must be for a just society. SAVE MALAYSIA.

K. Siladass

      Amendments to Family Laws

It is up to an individual who has attained the age of eighteen to decide the religion he wishes to follow; however, it cannot be denied that the former familial duties and responsibilities of the person changing the religion persist until suitable arrangements are made by the spouses themselves, or finally settled by the civil court in respect of future maintenance of the children of the non-Muslim marriage, their education and their religious upbringing.

Although the law has made it clear that the High courts shall have jurisdiction in matrimonial matters when one spouse has elected to leave the religion at the time when the non-Muslim marriage was solemnised, and it is also clearly spelt out in all the State Enactments that the Shariah courts shall have no jurisdiction in matrimonial matters, where the parties are not Muslims, yet the claim that there prevailed jurisdictional conflict is indeed baffling. In fact there is no jurisdictional conflict at all.

Another point that needs to be made plain is the fact that every State Enactments has enacted that for the Shariah court to exercise its jurisdiction the parties before it must be Muslims. If one of the parties is a not Muslim, Shariah cannot exercise its jurisdiction. This has been very clearly emphasised by the late Tan Sri Prof. Ahmad Ibrahim in his essay: “The Amendment to Article 121 of the Federal Constitution: Its Effect of Administration of Islamic Law [1989] 2 MLJ xvii”.

However, for two decades and more, inconsistent interpretation of the statutory provisions had been the source for the infinite agony for parents whose children had been snatched away. The latest cases of Indira Gandhi and Deepa had indeed awakened the conscience of the Malaysians transcending beyond racial and religious differences and sentiments.

While so much of discussion has centred on the jurisdictional question one important fact that seems to have been over looked is the status of the children when one parent converts to Islam. The courts have not so far explained what would be the legal status of a child under the age of eighteen years when one of the parents having converted to Islam, a dispute arises as to the custody of that child (or children) of a non-Muslim marriage? Can one of the parents exert authority on the children to the exclusion of the other, or has the child by reason of the dispute between the biological parents in consequence of the conversion of one parent has become a ward of court; thus, only the High Court has the jurisdiction and power to order custody and other ancillary reliefs in accordance with the provisions of the Guardianship of Infants Act 1961 and the Law Reform (Marriage and Divorce) Act 1976.

            Further, has the Shariah court any jurisdiction on a non-Muslim child born of non-Muslim parents when one of the parents had subsequently converted to Islam and the non-Muslim marriage has not been dissolved, in the light of section 42 (2) (b) (i) and (ii) of the Administration of Islamic Law Enactment 1989 (Enactment No. 2 of 1989) which says that the Shariah court shall have jurisdiction if all the parties are Muslims. Thus, when a child is not a Muslim can the Shariah court exercise jurisdiction over it? These are the points which call for mature deliberation.

The Government, it appears, is considering amendments to the laws to put an end to the kind of sufferings Indira Gandhi and Deepa have had been subjected besides many others.

While this move is laudable it would be wise to publish the proposed amendments so that the public will have an opportunity to make representations. The Government should not take the view that it knows best, therefore, it is best equipped to deal with the matters complained of. This is not true as can be seen from the inconsistent interpretations that had surfaced. Besides, it should not seek protection under the cover of sensitiveness and be a source to greater conflicts.

K.Siladass 

The Attorney-General's statement that prime minister Dato Seri Najib Razak has not committed an offence of bribery thus no further investigation is needed and informing the anti-corruption office to close the file does not come as a surprise. What must irk the Malaysian public is the AG's disclosure that the money came from the Saudi royal house by way of a gift. If that is a gift then why must it be returned? AG is behaving like a cat which thinks that the whole world is dark just because it closed its eyes. The AG may be satisfied but the Malaysians are not. What AG should have done is to bring the matter to court and let it clear Najib. Whatever the AG says in respect of the corrupt acts of Najib it will be assumed that the handpicked AG to replace the former chief prosecutor will be loyal to Najib. The pertinent questions which the AG had to answer are:

؞    A gift is a gift, so why was it necessary to return?

؞   To whom it was returned?

؞   Is the Bank Negara aware of this refund?

؞   Since it was alleged that the donation was for 13^th GE, how did Najib raise the 

     amount to refund?

By K.Siladass

Dated this 28^th January 2016