Archive for the ‘Institution of Monarchy’ Category

Evolving role of the monarchs

Sunday, December 31st, 2017
The Conference of Rulers in session in October. Malaysia’s constitutional monarchy is unique in that it has nine hereditary rulers, each representing a state, and they elect among themselves a brother ruler to serve as the king for a period of five years. BERNAMA PI

MONARCHY as a form of absolutism in governance is known by a variety of names from the time of its inception.

In a primitive setup, the functions of absolutism (monarchy) was wielded by the Shaman or the head of the clan.

As communal society evolved, that function took on new forms and names, such as the “High Priest” and “The Oracle”, who held absolute power for he was the judge, jury and executioner. Such ancient forms of governance usually had a spiritual aura to back their actions, giving them a kind of divine status.

In short, none dared challenge them for fear of retribution from the spirits.

As man gained knowledge, their communal organisation evolved and became structured with definite guidelines for social, cultural and spiritual engagements. The extent of the involvement of the masses in having a free will to determine their lifestyle and existence and the nature of control over them indicated the form of governance. It ranged from dictatorship, monarchy, oligarchy to democracy.

Dictatorship is rule by one individual who manipulates the mechanism of governance to remain in power and he is not accountable for his actions.

Peoples’ lives are closely regulated and monitored in such a system to conform to the dictates of the leadership. Religion is often used to maintain and legitimise such a system.

In an oligarchy, an elite group, whether a rich family dynasty, religious groups, military or rich traders, controls the state or country.

Such a system is usually tyrannical and oppressive to keep the masses in line.

Monarchy is a governance by a royal family, usually a dynasty with the patriarch as the monarch.

The extent of their control designates the nature of the different monarchies.

In a crowned republic, the power of the monarch is symbolic, while he has complete autocratic control in an absolute monarchy. In a constitutional monarchy, his power is restricted.

Democracy had its roots in the Greek city states around the 5th century BC. But, it was not a full-fledged democracy as women were not allowed to vote and an elite class held sway over governance.

Western-style democracy originated in classical Athens and the Roman Republic. But, before the 2nd century BC, the Roman emperors were absolute monarchs.

Monarchy was the most common form of government in Europe until the 19th century, when most of these countries converted to constitutional monarchy.

Before the advent of colonialism, most Southeast Asian countries were absolute monarchies that practised feudalism of governance, which divided the people mainly into nobility, landed proprietor and peasant.

In this region, absolute monarchy was based on the concept of Devaraja, in which the monarch was regarded as a demi-god or was bestowed with divine powers. He reigned supreme and exercised absolute power over the people and his lands, as well as over all matters of governance.

The people existed at the behest and pleasure of the monarch, whose authority was not restricted by any written laws, legislature or customs.

Such a form of governance, which existed in Malaysia, is documented in historical records, lore, legends and literary works, such as Hikayat Raja BersiongHikayat Merong Mahawangsa and in all Mak Yong stories.

However, this concept of absolutism as portrayed in these literary, dramatic and historical records varies from one of belligerence to a benign entity.

With the advent of colonialism in Tanah Melayu, the powers and authority of the rajas and sultans were gradually eroded by the British.

In the end, the royals were only left with the authority over religious and customary affairs, while other aspects of governance became the privy of the British colonial government to be administered by the governor general and his residents.

After World War 2, the British established the Malayan Union with the consensus of the rajas and sultans, but was opposed by Malays led by Datuk Onn Jaafar because the sultans and rajas would have lost all powers and authority on matters of state, save for religious and customary matters.

The British relented after seeing the strong opposition from Malays and replaced the Malayan Union with the Federation of Malaya with amendments to the authority of the royals who now have to be informed and consulted over matters of state.

After independence, the role of the British government was taken over by the political party in power within the context of parliamentary democracy, in which Parliament, which constitutes elected representatives that represent the people, reigns supreme on all matters of governance. And the instrument that regulates the workings of governance is the Constitution that serves as a moral and ethical guide to the matrix of individual and societal relations and engagements underlined by the principles of democracy.

And within the framework of parliamentary democracy is embedded the role of the constitutional monarchs, whose powers are circumscribed, legally bound by a constitution or legislature.

However, the status quo of the sultans and rajas remains enshrined in the Constitution as constitutional monarchs, thus the constitutional monarchy.

Malaysia’s constitutional monarchy is unique in that it has nine hereditary rulers, each representing a state, and they elect among themselves a brother ruler to serve as the king of Malaysia for a period of five years in mainly a ceremonial role as the king cannot act unilaterally, but only on the advice of the prime minister.

According to the Constitution, the powers of governance is vested in the sitting prime minister and his cabinet, who are the peoples’ representatives.

As such, all political deliberations, engagements and dissensions are confined to the peoples’ representatives and the masses as monarchs are above politics.

This is to preserve and maintain the dignity of monarchs because political involvement is a two-way engagement that could result in unsavoury and unpleasant outcome.

In the nine states, each headed by a monarch, the governing authority are the menteris besar. All state matters, except religion and cultural affairs, are under the purview of the menteris besar and elected representatives who represent the will of the people.

Unlike the olden days of absolute monarchy when subjects lived at the behest and pleasure of monarchs, today they are masters of their destiny by electing representatives to represent them and to see to their welfare and wellbeing.

Monarchs are in no way involved in the people’s lives as contact between monarchs and the people are circumscribed and confined only to official royal functions.

This is done again to maintain the aura, dignity and regality of the institution of monarchy.

Even if political representatives are not governing the country as they should, monarchs have little leeway to caution them.

However, they could still register their displeasure through the Conference of Rulers on national matters.

Notwithstanding that, the authorities are not beholden to accommodate such caution from the Conference of Rulers. It is a one-way process in that monarchs must act on the advice of the prime minister and his cabinet.

Constitutionally, they do not serve as a system of checks and balances as the power and authority rest with the prime minister and his cabinet. But in times of dire need, the people may need to have recourse to their good office to caution, advice and even intervene in matters of national import that adversely affect the people. Monarchs form the last bastion of the people to redress their plight.


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King with a heart of gold

Friday, September 15th, 2017

KUALA LUMPUR: Touched by the plight of an eight-year-old girl with epilepsy, the Yang di-Pertuan Agong Sultan Muhammad V immediately donated towards her surgery to treat a birth anomaly in her brain, which is causing her seizures.

Comptroller of the Royal House­hold Datuk Wan Ahmad Dahlan Haji Ab Aziz said His Majesty wanted to help her parents as they cannot afford the medical fees.

Sultan Muhammad V was touched after reading a report by The Star on Sept 3 about Erinna Natashya Mohd Sohaimi, eight, who needs RM48,000 to undergo surgery tentatively scheduled for next month.

“His Majesty was concerned over the plight of the child, who suffers from epilepsy.

“After reading the story, His Majesty was moved to donate and help the child,” he said.

Wan Ahmad Dahlan, on behalf of the King, presented the generous donation to Star Media Group editor-in-chief Datuk Leanne Goh at Istana Negara here yesterday.

Generous contribution: Wan Ahmad Dahlan presenting the donation to Goh at Istana Negara.

Generous contribution: Wan Ahmad Dahlan presenting the donation to Goh at Istana Negara.

Sultan Muhammad V, whose official birthday was celebrated on Sept 9, ascended the throne on Dec 13, 2016, as the 15th Yang di-Pertuan Agong.

Erinna, who developed epileptic seizures when she was eight months old, will undergo the surgery at Ara Damansara Medical Centre in Selangor.

Her father Mohd Sohaimi Shafie, 47, had contacted Star Founda­tion, the charitable arm of Star Media Group, for financial aid.

Sohaimi, who had to quit his job as a lorry driver to care for Erinna, has three other children aged 16 to 22, all of whom are still studying.

His wife works as an assistant at a kindergarten in Kedah.

On behalf of Star Foundation, Goh thanked the King for his kindness and generosity.

Compassionate Ruler: Sultan Muhammad V (right) presenting a zakat donation to an orphan during a breaking of fast event at Istana Negara in June. He has always demonstrated a caring heart for those in need, like Erinna. — Bernama

Compassionate Ruler: Sultan Muhammad V (right) presenting a zakat donation to an orphan during a breaking of fast event at Istana Negara in June. He has always demonstrated a caring heart for those in need, like Erinna. — Bernama

She also thanked all the donors who had contributed to the cause.

Star Foundation would like to remind donors to download and fill in the Medical Fund – Donation Form at­fund-programme/.

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Duty and his subjects came first for Tuanku Abdul Halim.

Wednesday, September 13th, 2017

PETALING JAYA: The most important things in his life were his responsibilities and his subjects.

That was why the late Tuanku Abdul Halim Mu’adzam Shah always did his best to turn up at events that he was invited to, even when he felt unwell.

This was revealed by his granddaughter Raja Sarina Iskandar in her tribute to him.

He often said the words “duty (tanggungjawab)” and “citizens (rakyat)” while he was alive, she said.

“For Tok, whatever he did was for the beloved people.

“He always tried his best to turn up at events to which he was invited as a sign of appreciation and respect, although at times Tok felt weak and unwell, because he did not want to disappoint anyone,” she said.

It came to a point where his family members had to advise him not to strain himself, especially during his second term as the Yang di-Pertuan Agong.

Tuanku Abdul Halim made history when he became King for the second time in 2012. He also reigned as King from 1970 to 1975.

Tuanku Abdul Halim ended his term as the 14th Yang di-Pertuan Agong last December and was replaced by Kelantan Ruler Sultan Muhammad V.

Even when others tried to convince him to understand his limits as an ageing person, the 89-year-old told his granddaughter: “No. This is Tok’s duty.”

This is Raja Sarina’s second tribute to Tuanku Abdul Halim.

On Monday, she wrote that Kedah and Malaysia “have lost one of their greatest kings”.

The Kedah Ruler passed away at 2.30pm on Monday.

She said he was a King whose generosity extended beyond what was reported in the media.

Just like his father, she said, he believed that being a King brought with it a big responsibility.

“Quietly, he has sponsored the studies of several young people up to university level. Looking at his people succeed gave him great happiness,” she wrote on her Instagram page in Bahasa Malaysia yesterday.

Raja Sarina added that his love for Kedah could be likened to the love of a father.

“To him, Kedah was like a child that needed to be protected and supported until it could be independent and walk by itself.
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A ruler with a commoner’s heart

Tuesday, September 12th, 2017
Sultan of Kedah Sultan Abdul Halim Mu’adzam Shah and Tuanku Hajah Haminah waving as they returned to Alor Star after completing his second term as the Yang di-Pertuan Agong. (FILE PIC)

THERE I was, on the grand stage, face to face with this great man everyone loved, mentally giving my little head a pat.

I glanced a few metres away to my right to see the man I wanted so much to impress, giving his nod of approval.

The son of Tara Singh was being honoured by the Sultan of Kedah Sultan Abdul Halim Mu’adzam Shah himself.

My school, the famous Sekolah Rendah Iskandar, had made all the preparations to greet the Ruler and everyone had been briefed on the protocols involved.

The year was 1979 and the Sultan had obliged to grace my school’s year-end prize-giving ceremony, where those who scored 5As in their Standard Five exams were feted.

The exams, which were then known as Ujian Penilaian, not only “determined” your future, but more importantly for us Kedahans, it decided if you were worthy of a place at the prestigious Sultan Abdul Hamid College (SAHC).

“It’s 5As… or you can only dream of going to College (as SAHC was commonly known).”

These words had been drummed into me my entire primary school life.

However, I believe the family was more excited that the Sultan was there in person, more than me having aced the exams.

As I set to put my best foot forward in my euphoria, the protocols I was convinced were etched in my memory thanks to the endless rehearsals, chose to suddenly abandon me.

All I remembered was that I had to do something with my hands.

I didn’t know why the hall erupted into laughter, and my dad turning blue, as I clasped my hands to my chest and bobbled my head. The sense that I must have screwed up quickly crept in.

As I looked up to the King with my hands outstretched, I know that everything was going to be alright. My Tuanku’s eyes were sparkling with the kindest look and, at the same time, he wore the most sympathetic look on his face.

Immediately, I was awash with this nothing-else-mattered feeling, when he wished me a bright future ahead and tapped me on my head just to make sure I didn’t beat myself up too hard.

That was my first encounter with my Sultan, Sultan Abdul Halim Mu’adzam Shah.

Like most who who grew up in Alor Star, Tuanku Abdul Halim to us was an integral part of the people’s lives.

The celebrations that were held in conjunction with the Sultan’s birthday at the riverfront of Sungai Kedah, and cuts through the town centre, was an annual affair marked out on the calendar of most households.

Thousands would gather to take part and watch the parades but the highlight, without fail, would be the part when the Sultan, who never failed to join his people, mingle with his subjects.

This would not be the only occasion for the people of Kedah to get up close with their Sultan. Not many outside of Kedah knew that the grounds of Istana Anak Bukit, where he lived, used to be accessible to the people.


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Malay Rulers Protect People Against Usurpation – Sultan Nazrin

Saturday, August 5th, 2017

PUTRAJAYA, Aug 5 (Bernama) — The Sultan of Perak, Sultan Nazrin Shah said the Malay rulers were in the best position to protect the interests of the people from being hit by ‘waves of power struggle’.

He said the Royal Institution was a continuation of tradition in maintaining the nation’s identity, a symbol of sovereignty which is the crown of the nation.

“The Malay Rulers are in the best position to protect the interests of the people,”he said at the ‘Memperkukuh Pasak Negara: Ke Arah Wasiat Lebih Tersurat’ or ‘Strengthening National Pillar: Towards A More Tangible Will’ Convention here today.

He said the basic things, especially those touching on Islam and the Malays which had been agreed upon during the enactment of the constitution, should not be traded for the purpose of achieving short-term political gains.

The fundamental principles should not be sacrificed in trying to protect any party, organisation or individuals.

“The fundamental principles touching on Islam and the Malays, should never be compromised.

“Whatever the excuses, whatever tricks there may be in achieving the short-term goals of any party, the fate of the ummah (Muslims) must not be put at stake today or in future, he said.

Sultan Nazrin Shah said that it was the responsibility of the rulers to observe, monitor and to have the courage to tick off those running the administration to ensure that they were transparent, sincere, accountable and honest in carrying out their responsibilities for the overall peace, prosperity and well-being of the nation.

He said the ruler was not merely there to fulfill the traditional functions of a constitutional monarchy or as a symbol of power in performing ceremonial tasks.

“The ruler is not just a rigid decorative monument, who is lifeless and with no soul. Rulers are not blind, deaf and dumb.

He said the honest views in relation to the Islamic religion, the national language, the unity of the people, freedom of the judiciary, corruption, abuse of power and various other issues arise with the intention to ensure the country remains stable and safe so that the people could live in peace and prosperity.

Sultan Nazrin said it was important for those who were in the position to advise the rulers to be sincere, wise, knowledgeable and truthful so that the ruler is not lulled into believing and being influenced by untruths.


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Restoring judicial power

Friday, July 28th, 2017
Legal balance and harmony is maintained in line with the doctrine of separation of powers because legislative power is vested in Parliament, while executive power is vested in the Yang di-Pertuan Agong acting upon advice. FILE PIC

WHEN our Federal Constitution came into force on Merdeka Day, Article 121 stated: “The judicial power of the Federation shall be vested in a Supreme Court and such inferior courts as may be provided by federal law.”

Legal balance and harmony was maintained in line with the doctrine of separation of powers because legislative power is vested in Parliament (Article 44), while executive power is vested in the Yang di-Pertuan Agong acting upon advice (Article 39).

The objective of this important constitutional doctrine (originally attributed to French political philosopher de Montesquieu) is that no single arm (organ) of the government shall completely dominate the other. However, absolute separation of powers does not exist here because some of our members of parliament are also, at the same time, members of the administration (in the executive branch of the government).

Subsequent events in our constitutional history saw an erosion of this judicial power. This is evident upon our reading of Article 121 as it stands today, where the important words “judicial power… shall be vested” are now painfully missing. In plain language, the three arms or organs of our government are no longer at par.

Members of the legal fraternity and the judiciary were recently reminded of this segment of our legal history when the Federal Court handed down its remarkable decision in a land acquisition case known as “Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat” on April 20. The facts of the case are summarised below.

The appellant company owned a piece of land in Hulu Langat, Selangor. In January 1997, the company commenced construction for its industrial project known as “Kajang 181 Park”. Part of the land was then acquired under the Land Acquisition Act 1960 (Act 486) for the purpose of constructing the Kajang-Seremban Highway. The appellant was in due course awarded compensation totaling RM20,862,281.75 — representing the sum of RM17,627,400.00 (the value of the land acquired) and RM3,234,881.75 (compensation for the loss suffered from the termination of the project). Unhappy with the amount, the appellant referred the case to the High Court.

At the High Court, the appellant submitted that the compensation awarded was inadequate because the Land Administrator (respondent) failed to consider the appellant’s “other claims” — namely, loss of profits and the costs and expenses arising out of the termination of its commercial project. The appellant submitted that he should be compensated for loss of profits in respect of the sale of the 57 units in the project, which had been concluded when the acquisition took place.

After hearing the submission of both parties, the High Court held that the appellant was also entitled to receive an additional compensation of RM1.16 million “for severance and injurious affection”, but its other claims for compensation were dismissed. Aggrieved by this decision, the appellant appealed to the Court of Appeal but the appeal was dismissed. The appellant then sought leave to appeal to the Federal Court. Six questions of law were framed for the decision of the Federal Court.

For the purpose of this short commentary on the issue of judicial power, focus is made only on question No. 3, which concerns the constitutional validity of Section 40D of Act 486.

According to Tan Sri Zainun Ali (the Federal Court judge who delivered the 87-page judgment of the court), the issue was whether Section 40D “contravenes Article 121(1) of the Federal Constitution, which declares that judicial power to decide a dispute brought before the courts is vested in the courts” (paragraph 24).

Explaining the history of Act 486, Zainun said that originally (before 1984), the duty of assessors (under Section 42 of the act) is only to assist the judge in determining the amount of compensation, while the power to determine it remains vested in the judge. When Act A575 came into force (on Jan 20, 1984), Sections 40-42 of Act 486 were deleted, thus, completely removing the role of the assessors. The role of the assessors was, however, restored by Act A999, which came into force on March 1, 1998.

She added that when the revised Section 40D came into force in 1988, a “sea change” took place because the assessors are now empowered to decide on the amount of compensation, their decision becoming final and non-appealable. Their original role (merely to assist the judge) has been transformed, as they have become “fact finders and adjudicators”, effectively usurping the judicial power of the court.


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Hardwired for global hegemony

Saturday, July 8th, 2017

American democracy has become subverted by the rise of many hegemonic groups acting behind the scenes.

FOURTH of July was the 241st anniversary of the American Declaration of Independence. On that historic day in 1776, 13 British colonies in North America cut their links with their oppressor and proclaimed themselves to be the independent, sovereign United States of America.

The Preamble to the Declaration of Independence contains some of the most stirring words ever penned in a political or legal document: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The eloquence of this passage distils the moral idealism of the forefathers of America’s independence and their vision and aspiration for the then new nation.

Indeed, in the decades that followed, the Declaration inspired many other similar documents around the world, including the Bill of Rights in the US Constitution. Abraham Lincoln referred to the Declaration in his quest to abolish slavery in the US.

Till today, students of public law around the world look with admiration to the American Constitution’s safeguards for liberty, its protection against state despotism and its vibrant provisions for check and balance of power.

Sadly, however, a wide chasm between theory and reality is discernible. Even in its pioneering years the “land of liberty” violated its lofty ideals.

The US expanded across North America by slaughtering the Native American population. “How the West was won” is a story penned with the blood of indigenous people.

The US wrested Arizona, California, Nevada, New Mexico, part of Colorado and Utah from Mexico. Though professing anti-colonialism, it acquired a few colonies abroad.

Friends of America note with sadness that after World War II, the use of brute military force and “American exceptionalism” have become very pronounced.

In 2015, the US spent US$598.5bil (RM2.6 trillion) on defence, even though it is not threatened by any enemies. It maintains 800 military bases in more than 70 countries around the world.

It is the chief manufacturer and seller of weapons of mass destruction and often uses proxies to sell murderous weapons to both warring sides.

A nation born in liberty has metamorphosed into a nation with an insatiable addiction to war and the ethos of a garrison state. From the jungles of Vietnam to the deserts of Mesopotamia, America remains in constant war to pursue its hegemonic and strategic interests.

William Blum, a historian and US foreign policy critic, has calculated that since World War II the US has nuked, bombed or been militarily involved in 31 countries and has directly or indirectly killed or maimed between 15 and 20 million people, 90% of whom were innocent civilians. Pentagon records their extermination as “collateral damage”.

Nations in Asia that have suffered devastation at American hands are Afghanistan (1998 to the present), Pakistan (2003, 2006 to the present), Japan (1945), Cambodia (1969-70), Vietnam (1961-73), Laos (1964-73), China (1945-6), Korea (1950-53) and Indonesia (1958).

In the Middle East, victims of America’s “deadly export of democracy” are Iraq (1991 to the present), Iran (1987 and 2003), Kuwait (1991), Lebanon (1983-84), Syria (1983-84, 2014 to the present), Palestine (2010) and Yemen (2003, 2009, 2011 to the present).

In Africa, the US has intervened militarily in Libya (1986, 2011, 2015 to the present), Congo (1964), Sudan (1998) and Somalia (1993, 2001-8 and 2010).

In Latin America, the US has imposed its military will on Cuba (1959-61), El Salvador (1980s), Guatemala (1954, 60, 67-69), Grenada (1983), Nicaragua (1980s), Peru (1965) and Panama (1989).

Europe has not been spared. Bosnia in 1994 and 1995 and Yugoslavia in 1999 were mercilessly bombed.

What is notable is that most of the targets are people of colour, those of the Third World or Muslims. It is not just a coincidence that all the nations being bombed by the USA today happen to be Muslim.

In addition to direct military attacks, the US wages proxy wars around the world. In Iran (1953), Guatemala (1954), Congo (1960), South Vietnam (1963), Brazil (1964), Dominican Republic (1965), Chile (1973), Egypt (2013) and Ukraine (2014) the US armed rebels and hired mercenaries to subvert and overthrow governments that refused to tow its line.

Contrary to what Americans believe, the United States is one of the greatest destabilising forces in the world today. It is also the chief diplomatic, military and financial backer of the seven-decade-old genocide in Palestine.

To assert its impunity and sense of exceptionalism it has done such outrageous things as shooting down an Iranian civilian plane in 1988 (when a US Navy ship reportedly mistook the Airbus A300 for a much smaller and faster F-14 fighter jet), killing all 290 on board. In 1999, it bombed the embassy of China in Belgrade. US officials later claimed it was an error.

Ever since 9/11, it runs offshore torture camps. It arms and finances terrorist groups with a view to destabilising governments it does not like.

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Vital to streamline judicial system

Saturday, July 8th, 2017
(STOCK PHOTO)For more than 50 years, the Malaysian legal system has had to deal and grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and syariah courts.

A SOCIETY cannot afford to have an administration of justice that is in disarray. While legal pluralism may be celebrated, the same treatment may not be accorded to decentralised judicial pluralism because of the inherent incapability of administering justice effectively.

This is indeed the case in Malaysia, where a common law tradition and civil justice system seem to be at odds with the strong element of religion in the constitution.

For more than 50 years, the Malaysian legal system has had to deal and grapple with the ongoing and seemingly endless conflict of judicial authority between the civil and syariah courts

The existence of dual and parallel judicial systems with mutually exclusive jurisdiction in society is not easy for it essentially creates a crisis of authority.

Therefore, there is a need for a minimum commitment to legal centralism by having a streamlined judicial system primarily as a means of securing a functional place for judicial authority that can provide final, timely and comprehensive determination of legal disputes

This presents a two-fold challenge — ideological and institutional — both of which impede the important work of having a reliable and effective administration of justice.

Ideologically, while there has been a discussion about certain differences in the underlying values and framework of the civil and religious systems of laws, there is nothing inherently problematic from an Islamic point of view in accepting that civil courts are also syariah courts

Courts are basically created to administer justice and enforce laws. Although there are bound to be substantive differences between certain aspects and elements of Islamic law and civil law, this substantive issue is a matter that is primarily for the legislature to resolve and not the court.

The plausibility of having a streamlined judicial system is jurisprudentially tenable by relying on the legal positivism school of thought. Legal positivists maintain that the validity of law derives from its source.

Therefore, ordinary courts can administer any law passed by the legislative assembly, regardless of its pith and substance, which may be religious in nature. Any disagreement on the scope, propriety and applicability of highly contentious norms that may have strong religious elements has to be sorted out by Parliament.

On this score, Islamic law will be administered and treated equally in comparison to any other branch of law; tort, contract law, criminal law, defamation law, etc.

The equal treatment here refers to the ideal situation where all laws are administered by a single judicial authority within a broad single judicial framework. As such, there will be no issue about court jurisdiction to adjudicate a legal dispute.

Institutionally, the dual and parallel judicial systems are purportedly designed to serve the interests of both Muslims and non-Muslims. It was thought that the arrangement would be capable of safeguarding non-Muslims from being subjected to Islamic laws while at the same time giving space for the Muslim community to practice their personal laws.

The current arrangement practically means there is no single judicial authority that would have jurisdiction over all subjects. It is an intricate challenge to resolve a dispute when there are two bodies claiming authority over the same matter

The issue of a dual judicial system with parallel jurisdiction is an institutional problem and must be addressed structurally. It is also a constitutional problem that cannot be completely addressed with piecemeal solutions using various canons of construction or technical legal interpretation of constitutional provisions, for this would not solve the core issue of conflicting authority.

Courts are established to adjudicate legal disputes, and this judicial role is a primarily norm-applying function. Therefore, for the sake of finality, consistency and predictability, courts in Malaysia should be streamlined into one system and vested with jurisdiction over all members of society.

This suggestion acknowledges that there can be different kinds and levels of courts as the state deems fit to administer justice.

The syariah principle of particularisation of justice (takhsis al-qada) also permits the setting up of specialised courts. This multiplicity should not in any way be mistakenly understood to imply the existence of multiple judicial authorities, for there is actually only one judicial authority and so is justice, which is essentially monolithic and indivisible.

It does not follow, however, that certain segments of society cannot be exempted from the application of certain specific laws. The inapplicability of Islamic laws to non-Muslims is an accepted syariah position and can still be retained.

Instead of protecting non-Muslims by creating two different courts — civil and syariah — non-Muslims may be statutorily exempted from certain areas of law. This is in line with the doctrine of reasonable classification that permits differentiation based on an intelligible differentia.

For example, an act of Parliament may criminalise adultery and provide a punishment for such an offence that is enforceable among Muslims only. In this way, the clash of judicial authority would not arise because there is only one authority that exists to administer different kinds of laws on the subject.

Ultimately, we have to get out of this binary dichotomy of civil and syariah courts in the cause of a better Malaysia. Maintaining such a dichotomy will not serve any good purpose because a decentralised judicial system is an injustice in itself.


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Restoring judicial clout

Thursday, June 8th, 2017

IN a country with a supreme Constitution and a chapter on fundamental liberties, it is the duty of the superior courts to preserve, protect and defend the basic law against any institution or person that lays rash hands upon the ark of the Constitution. The courts must enforce fundamental rights and the federal-state division of powers.

This multi-faceted activism was given a devastating blow in 1988 when five superior court judges were suspended and three, including the Lord President, were dismissed in disregard of constitutional standards. A nail was hammered in the judicial coffin by amending Article 121(1) to take the “judicial power” away from the courts and to instruct the judiciary to perform only such functions as were assigned to it by federal law.

The ignoble purpose of the amended Article 121(1) was to abolish the doctrine laid down in Dato’ Yap Peng v PP (1987) that the “judicial power” of the Federation must reside exclusively in the judiciary and cannot be usurped by or assigned to any other organ. The amendment was meant to overthrow the celebrated doctrine of hundreds of years that even if there is no statutory provision for appeal, the courts have an inherent, prerogative, reserve, supervisory power to review and correct any illegality.

As a result of the amendment, the courts became mere implementers of the wishes of the executive as expressed in laws legitimated by an executive-dominated Parliament.

Despite this debilitating constitutional provision, some judges continued courageously to censure the executive whenever it exceeded or abused its powers. Others spoke boldly but acted timidly.

For example in PP v Kok Wah Kuan (2008), a Federal Court majority mocked the doctrine of separation of powers as having no legal basis in our Constitution and held that the power of the courts is limited to whatever Parliament bequeaths.

Fortunately, there was a bold dissent from Richard Malanjum, our Sabah and Sarawak Chief Judge, who insisted that separation of powers and judicial independence are firm pillars of our constitutional edifice. He rejected the view that “our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law”.

Justice Malanjum was eminently correct on both scores. A Constitution is not mere words written on paper.

It is animated by inarticulate values and ideals. It has a spirit and a soul. Separation of powers (of the check and balance variety) and judicial independence are definitely the heart and soul of our constitutional edifice.

As to the amended Article 121(1) provision that the powers of judges are solely derived from federal law, it must be noted that above and beyond federal law is the supreme Constitution. And there are other streams from which our judges must drink. Article 160(2) defines “law” by stating that law includes written law (which in turn includes state law), common law and custom or usage.

In April, 29 years after the defacement of Article 121(1), and nine years after the disastrous Kok Wah Kuan decision, a strong Bench of the Federal Court in Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat has restored some of the old lustre of Article 121. Tan Sri Zulkefli Ahmad Makinudin, Tan Sri Hasan Lah, Tan Sri Zainun Ali, Tan Sri Abu Samah Nordin and Tan Sri Zaharah Ibrahim dealt with three major issues.

First, the composition of the tribunal under the Land Acquisition Act 1960. Section 40D of the Act transfers the power of determining adequacy of compensation to a tribunal consisting of a High Court judge and two outside assessors.

The Federal Court held that it was violation of the Constitution to appoint outsiders to sit on the High Court. Further, it was unconstitutional to reduce the High Court judge to a rubber stamp. The judge and judge alone must decide on the amount of adequate compensation.

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Native Court system must be independent, says Malanjum

Wednesday, May 31st, 2017

Kota Kinabalu: Chief Justice of Sabah and Sarawak, Tan Sri Richard Malanjum, has expressed hope that the Native Court system will be out of the hands of state executives.

He stressed that it is important for the institution to be independent, particularly when it concerns the appointment of community leaders.

“I’d like to see the day will come,” he said in his keynote address at the Majlis Jaksa-Jaksa Pendamai (Majaps) and Sabah Law Association (SLA) seminar themed “Justice and Rights – The Way Forward”, here, Monday.

He said as an independent body, no state executives or politicians can meddle in its affairs.

“YBs (Yang Berhormat) should not be involved in who should become a (native) chief (and) Ministers should not be involved in who should be a district chief. This is important,” he said.

He lamented, however, that this has not been the practice in some cases, causing blurred lines between the service to the “adat” and political interest.

“With all due respect, some of the native chiefs are more politicians than (being) native chiefs. And if you’re not on the same line with them politically, you’re dead meat. That’s not fair. So I think we need to change this,” he said.

On this note, Malajum reiterated his call for the Native Court in Sabah and Sarawak to be elevated on par with the civil and Syariah courts.

“If you look at the constitution, what we have now is the civil and Syariah court system of justice in Malaysia.

There should be a third system, which is the indigenous court system, which has the same standing as the civil and Syariah laws. We want the system to be in the Constitution to cater far native laws. At the moment, the Native Court is controlled by the executives,” he said.

Malanjum has been a strong proponent of the third system, having on various occasions spoken up on the need to set it by virtue of the three to four million indigenous population in both East Malaysian states who are still practising their “adat” and customs.

He was once reported as saying that the Native Court was still relevant today to ensure as custodians, the survival of the customary laws handed down from generations.

The recognition of the Native Court as the third justice system, he said, will effectively release it from the control of the executive and politicians alike.

“With the third system, we will have a commission to appoint native chiefs. It will be independent and respected.

That’s how it should be,” he said.

He noted that the third system was the grand plan of long serving former Attorney General of Malaysia, Tan Sri Ghani Patail, and effort towards making it a reality had reached 80 per cent.

He urged Ghani and State Attorney General Datuk Mariati Robert to continue picking up the matter while making the same call on Majaps and the SLA to help pushing it.

Speaking in jest, Malanjum said the Government might make a pledge to make it happen in view of the general election mood.

He noted that Malaysia can learn from Papua New Guinea that has successfully established its third system in the judiciary.

Meanwhile, Ghani, when met, said there is actually already a third system as the Native Court is recognised by the Constitution.

“It’s already there. It’s just that you don’t have the proper system and structure yet.

The Native Court needs to formalise this first. It has to fortify the system and that’s what we were doing as what Tan Sri Richard has said about the 80 per cent. I think they’re still doing it,” he said.

by Leonard Alaza.

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