Christchurch’s Tragedy,

Interfaith Humanity

Whilst the world is immersed in the tragedy that had struck the Mosques in Christchurch, New Zealand, a very simple understanding between a Muslim and a Hindu in one corner of the earth has given us hope that all is not lost, and there is still hope to eradicate misunderstanding and foster good relationship based on humane reasons and understanding. Two men were suffering from kidney ailment and both needed kidney transplant for their survival. One was Nadeem, a fifty-one years old Muslim and the other was a fifty-three years old Ramswarth Yadar, a Hindu.

Both the families of Nadeem and Ramswarth looked for donors but were unsuccessful. However, Dr. Hemal Shah, head of Nephrology at Saifee Hospital suggested the option of swap transplant. Ramswarth’s blood group (A) matched with Nazreen’s (Nadeem’s wife), while Nadeem’s matches with Sutyadevi’s (Ramswarth’s wife).

Following a month long discussion, the families agreed to swap the kidneys, and the transplants were successfully carried out. The two families, Hindus and Muslims have become life long friends. According to one source, as reported in the Indian Media, “Mumbai is not new to inter faith swap transplant. In fact, the city is home to the country’s first successful swap transplant in 2006, coincidentally involving a Hindu and a Muslim family.”

Perhaps this is the life-story peoples of different faiths should learn and digest the message. Religion should not be blind to love, kindness and compassion.

Interference with Judiciary

          I refer to your story, “Judiciary Not Immune to Interference”, (NST 22.2.2019). That story indeed evokes pertinent points calling for profound deliberation.

          The primary principle to remember is that there must not be any interference from any quarter with the judiciary. Any interference must be shot down as a calculated move to undermine the judiciary and its independence. The view that the judiciary is vulnerable to outside influence is a weak argument aimed at justifying disgraceful means to deflect the course of justice.

          The present complaint against the judiciary, apparently is not confined to conversion issues i.e. a non-Muslim converting to Islam, as had been highlighted; however, it is one of the reason which had been taken as an example to demonstrate that the judiciary can be vulnerable.

          Prior to Independence the civil courts dealt with all the problems whether they be Islamic or non-Islamic. This trend continued even after 31st August 1957 when the Federation of Malaya gained Independence and when Malaysia was created on 16th September, 1963.

          Perhaps we must first ask the question what do we mean by court? In the evening of the twentieth century the English Master of the Rolls asked: “What is a court?” And he answered: “This remarkably ugly room is called a court, but it is not the ugly room that is a court. It is a court because “we [judges] sit in it” (the word in brackets mine).
       
The learned Master of the Rolls did not venture further to define what is meant by “judges”. Perhaps that was unnecessary as it was well ingrained principle that judges had to be honest, incorruptible and be faithful to justice and not to the dictates of his whims and fancies. History is peppered with instances where judges have been faithful to their offices and refused to lean towards unfair practices. We have one judge who bravely declared that the king is not above the law. This was some centuries ago, and it happened in England. But, there had been also cases where judges have failed to live up to the demands of correct attitude of their oath of office.

          Now reverting to our own judiciary our courts have come away far from the ugliness or discomfort of the building the judges sit, which we call courts. The courts are fitted with modern facilities, and are comfortable.

We could ask did Malaysia have judges whose quality of honesty, incorruptibility had been suspect? Have the judges omitted to honour their constitutional duties? The answers must be in the affirmative; for, in the year 1966, on the eve of his retirement, the then Lord President of the Federal Court. Tun Sir James Beveridge Thomson wrote,

          “But though there have been changes in organization the highest standards in the actual administration of justice have at all times been maintained. That is because both Judges and practitioners have acted on the basis that the only standard of professional conduct and integrity is the highest.”

          And he added,

          “And what has been a source of particular pride to myself has been the way that the new generation of local Judges have held on high burning even more brightly the torch handed to them by their predecessors. The future holds no ground for fears or doubts.”

          It might have been observed that Thomson was referring to “the highest standards in the administration of justice”, which had been maintained at all times. He went on to define the quality of the highest standard in the administration of justice, because, both, the judges and practitioners have acted on the basis that the only standard of professional conduct and integrity is the highest”.

          Thomson was confident as can be seen in the penultimate paragraph of his message where he expressed the source of particular pride to himself has been the way that the new generation of local judges have held high in burning even more brightly the torch handed to them by their predecessors.” (See [1966] 1 MLJ xxvii at xxviii)

          The generation of local judges who handled the burning torch were those who believed in rule of law and maintained highest standards in the administration of justice. They are Tun Syed Sheh, Tun Azmi, NC Sharma, Tan Sri SS Gill, Tan Sri Eusoffe Abdoolcader, Tan Sri Hashim Yeop Sani, Dato H. Ong, Dato H.S. Ong, Tun Suffian, and a host of others.

          Thus, we can see that the judiciary was maintaining its tradition of disallowing any outside interference; but, things changed as from 10th June, 1988 when Article 121 of the Federal Constitution was amended whereby the hitherto judicial power which had been vested in the judiciary was removed. Having removed the judicial power from the courts it inserted a new clause numbered (1A) which said that the High Court [Civil Courts] shall have no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.

          The late Tan Sri Professor Ahmad Ibrahim explained that the “important effect of the amendment is to avoid for the future any conflict between the decisions of the Shariah courts and the civil courts which had occurred in a number of cases.” He then went on to list out some decisions which had been inconsistent with Shariah law. There was not any suggestion that Shariah law should acquire a status superior to that of the civil courts nor was the latter’s jurisdiction and power challenged. Where the parties to a dispute are all Muslims no problem would arise, but where all the parties are not Muslims and the dispute goes to the core of their matrimonial relationship, that is to say that in the cases of conversion only Shariah court have jurisdiction ignores the crux of the problem relative to jurisdiction.

          However, things came to a point of complete confusion when children under the age of eighteen were converted to Islam at the instance of one parent. Article 12(4) of the Constitution used the word “parent” and judges began to interpret that word ignoring the interpretive principles clearly spelt out in the Constitution itself and the Interpretation Acts 1948 & 1967. There also rose a question which court has jurisdiction when the question of conversion is in issue involving children. If there had been proper compliance respecting simple human feelings at the conversion stage, there would have been little dispute as to which court, Shariah or otherwise, has jurisdiction; but when the threshold of the conversion itself is challenged due to serious flaws, for example, when the consent of both parents of the children under eighteen years old had not been obtained, then, the question should be properly dealt with in civil courts. This was necessary as one spouse’s conversion to Islam after going through a civil marriage and having offspring, it is only fair that the civil court should bring an end to the civil marriage and the issues of custody of his children of his marriage, their religious education and education in general are dealt with. These are humane considerations transcending religious beliefs.

          When the interpretive tools were jettisoned and judges went on a spree ignoring their constitutional oath things got out of hand and injustice became the home of the judiciary. Were the judges faithful to their constitutional oath or faithful to their religion? Moot question, and only the judges themselves will have to answer conscientiously.

          Now looking at the events as revealed by Datuk Dr Haji Hamid Sultan, and the earlier disclosure by Dato Syed Aidid when he was serving as a judge, there had been occasions when judges were not able to exercise their mind consistent with the facts of the case. The complaints are not restricted to conversion cases but cover a large spectrum of judicial bias or blunder. Needless to emphasize that the complaints are very serious and need to be addressed and it would not be proper to take a stand that the judiciary is vulnerable to outside interference. Such a feeling should not have arisen in the first place, and it had no place in a democracy in which judiciary holds a very important position.

          The judiciary must be independent and for it to be so it has to have judges, who are honest, incorruptible, dedicated to the constitutional oath they had taken. Short of it would be unacceptable. Judges should be independent and be free to express their conscientious judgments. There should not be any interference – whether it be financial, prospects of promotion or protection of tenure in office, or divine pleasure. Judges should be faithful to the justice of the case, not to their faith, the consideration of which are different and personal. Dispensation of justice is for public good, not for amelioration of the religious morality.
 

 K.Siladass

What were the roles played by the races of Malaya during and after the Japanese occupation?

by

K.Siladass

Nowadays, it seems, race bashings, accusing, and abusing other races and religions, especially the Chinese and Indians and non-Islamic religions have become a norm; yet, the authorities seem not to be concerned at this blatant violation of the law, and lack of respect for constitutional safeguards.

In the midst of all the provocative allegations, some have started to add, as if fueling the flames of racial and religious hatred, that it is only the Malays who fought against the Malayan Union and that the non-Malays opposed it only when they realised benefit would accrue to them. We can understand if this suggestion had emanated from those whose knowledge in history is suspect. But, what must irk us is that such allegations come from those who are supposed to be well-endowed with education. Unless, they, for some reasons of their own, which cannot be wise, have chosen to turn a blind eye to history; or have no inclination to recognise the avert and covert acts of non-Malays during the Japanese occupation; with the co-operation of our Malay brethren.

Writing about Malayan Union, Barbara Watson Andaya and Leonard Y. Andaya, the authors of "A History of Malaysia" have this to say:- (at page 267)

"Although the Chinese and Indian Communities could see that the Malayan Union promised certain advantages, they also did not give it unqualified approval. When the Malayan Indian Congress (MIC) was formed in August 1946, its leadership initially supported the Malay position." 

A.J. Stockwell in his meticulous monograph: "British Policy and Malay Politics During the Malayan Union Experiment 1942-1948'' (at p. 62) says that the ''Malay press gave the October announcement [about the creation of Malayan Union] a cautious approach, the most radical Malay group welcomed it enthusiastically."

Stockwell adds: (at p.62)

"… the majority of the people were at this time pre-occupied with the problems of survival; ‘rice riots', shortages of food and clothing, industrial conflict and general hardship rather than the constitutional future of the country were their immediate concerned. Until early 1946 the Malayan Communist Party (the political arm of the MPAJA) was able to take advantage of these problems to dominate what political activities there were in the peninsula."

Subsequently, when the full impact of the Malayan Union was realised, the Malayan National Party, which had initially supported the Malayan Union, withdrew its support. (See Stockwell at p. 76). So much for the position initially adopted by the Malays and non-Malays. Taking the political situation of that era into consideration and the British attitude to negotiate only with the Sultans and subsequently with UMNO, the views of the non-Malays were totally ignored. Besides, with Britain’s single-minded concern to preserve its military bases in this region and to wipe out Communist influences, the British were prepared to sacrifice the interest of the non-Malays.

Despite all the dangers that were faced by the non-Malays, whether they were communists or otherwise; they did everything within their means to resist the Japanese. Anti-Japanese activities were not confined to armed struggle but they were others eg. taking care of the people without racial and religious prejudice when food was scarce and protecting innocent people from the sword-wielding Japanese. It may sound like a trivial affair today but it is worth noting it today for they exposed themselves to severe reprisals from the Japanese.

When the Supreme Court of the Malayan Union was opened on 1^st June, 1946 by the Chief Justice Willan, he pointed out:

“As regard the records of the various Courts I am happy to say, that apart from Penang, the losses might have been more serious. In this Court our thanks are due to the members of the Court staff, particularly to Mr. Mahadevan my secretary, and to Mr. Samuel, now acting as Assistant Registrar, for their devotion and loyalty under difficult circumstances in preserving the major portion of the records in the Registry and also the Court libraries.”

The speech by Willan CJ can be found in 1946 [MLJ] at page xlvi.

The Mahadevan referred to by the Chief Justice is none other than the father of Dato Mahadev Shankar, a former Court of Appeal Judge in modern day Malaysia.

What should irk us here is that while there is so much reference made to Malayan Union and the struggle against it, the exemplary role of the Chinese and Indians during the Second World War is glossed over and made to look as insignificant and irrelevant.

The truth is that when the Japanese invaded Malaya, the British who were unprepared for this sudden assault had to retreat and prepare to retaliate against the Japanese. They believed that Singapore, the proud citadel, as they claimed would be sufficient to resist the Japanese advance. At last everything fell. British supremacy had been dealt with a serious blow. At that point of time there was not any political party to galvanise the people's support to resist the Japanese occupation.

The only party that had operated, albeit illegally, was the Malayan Communist Party (MCP). It was well organized and seemingly had an effective network. The MCP offered to work with the British against the Japanese but this was spurned by Sir Shenton Thomas, the governor of Singapore. Subsequently, there was a change of mind and the British agreed to work with the MCP. This collaboration saw the British supplying arms and training members to the MCP. And the vehicle which helped this venture was the Malayan Peoples' Anti-Japanese Association (MPAJA). It is true that the MCP was dominated by the Chinese, but there were also Malays and Indians deeply involved in it. Rashid Maidin and CD Abdullah are well known communists for their role in resisting the Japanese.

The British, in their grand effort to contain Communism spreading in Malaya, decided to take harsh measures against their wartime ally, the MCP. If we look at the history of the Second World War, and the problems Malaya and the people faced, it cannot be denied that the Chinese-dominated MCP played a very important role and had always been a thorn in the flesh of the Japanese. The Malays and Indians who cherished freedom fought against the Japanese and many perished. However, some historians have chosen to give measured credit or completely blacked out of the MCP's role; the destruction of human lives, largely Chinese, followed by the Indians and lastly the Malays is a historical fact that cannot be erased. Thus, to say that the non-Malays have not contributed towards the general struggle against British Colonialism and Japan's expansionism is but a convoluted representation of history.

There may be a grain of truth that the non-Malays saw the benefit that could be derived from emigrating to this country, but that thought did not gestate during the Malayan Union epoch. That thought must have germinated when Sir Francis Light founded Penang Island and established a factory there on behalf of the East India Company. Since the Malay Archipelago was not richly populated and lacked the human capital for industries, such a state would not ensure the success that Francis Light had envisaged. He had to rely on a foreign workforce. That pioneer workforce must have seen the benefit that could be harvested from this region and they would have dreamt that this region could be turned into a viable place to work, live, raise families and settle down. They worked for the future, but whether the future that was controlled by the British colonialists treated them fairly and in a dignified manner is a moot point. The pain they suffered did not end, and their descendants have yet to be freed from such a pain. When will this end?

The accusation that the non-Malays only opposed the Malayan Union when they discovered the benefit is against history and cannot be supported. It is made to antagonise the non-Malays and to create hatred in the minds of the Malays, a method Adolf Hitler adopted to promote and instill German nationalism, that is Nazism a propaganda pregnant with lies and distortions condemning the minorities for the failures and pitiable state of the majority.

It is patently mischievous and contemptible to sideline the contributions by the Chinese and Indians on the overall struggle against the British and the Japanese. The minority communities are aware that those who are embarking on this dangerous trend are a minority themselves as the majority of Malays have distanced themselves from this sordid dissemination of falsehood.