Malaysian Bar Press Release

Press Release: Unabated Deaths in Custody — Will They Ever End?

Wednesday, 29 May 2013 12:46pm
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The Malaysian Bar welcomes the announcement that the Inspector General of Police, Tan Sri Dato’ Sri Khalid Abu Bakar, will head a special committee established to take measures to prevent deaths in police lockups, which will implement frequent visits by doctors and also visits by Human Rights Commission of Malaysia (“SUHAKAM”) Commissioners. Such measures provide some assurance of the level of seriousness being accorded to the grave issue of deaths in police custody.

The statistics regarding deaths in police custody in Malaysia is a leaf out of the macabre: 156 persons died in police custody between 2000 and February 2011,1 and it has been reported that there were at least six such deaths in 2012,2 with this being the fifth one in 2013.3 This data is alarming, as it points to an average of at least one death in police custody per month since 2000.

The Malaysian Bar is dismayed and saddened by the news of yet another death in police custody, involving 32-year-old N Dharmendran. He was reportedly arrested on 11 May 2013, and died on 21 May 2013 whilst in police remand at the Kuala Lumpur police contingent headquarters.

The death of N Dharmendran is tragic and inexcusable. It is yet another incident that raises serious questions about the treatment and safety of detainees in police custody, and the methods of interrogation used. It underscores the importance of the requirement for those in police custody to have immediate access to legal counsel upon arrest.

In the case of N Dharmendran’s arrest, the protocol prescribed under the Yayasan Bantuan Guaman Kebangsaan (“YBGK”) scheme, which is an initiative made possible by Prime Minister Dato’ Sri Najib Tun Abdul Razak, and supported by the Government, does not appear to have been complied with by the police. The guidelines for enforcement officers stipulate that as soon as an arrest has been made, and before the suspect is questioned, the police officer must inform the suspect’s family (or friend) of the arrest, and must also provide details of the suspect and the arrest to YBGK, who will then despatch a lawyer to offer legal representation to the arrested person.

However, we understand that YBGK did not receive any notification from the police about N Dharmendran’s arrest. We regret to note that this is the second occasion that we are aware of where YBGK was not notified of an arrest, and the detainee later died in police custody. In the first incident, 32-year-old K Nagarajan had been found dead on 24 Dec 2012 in the Dang Wangi police station lockup.

The present state of affairs has led to much public outrage and an erosion of confidence in the police. The police must be proactive in ensuring that the wrongful actions of some amongst them do not tarnish the standing of the whole force. Unless this is addressed, the police force will unfortunately remain a diminished institution in the eyes of the public.

The unabated deaths in police custody reinforce the Malaysian Bar’s repeated calls for the Government to implement the recommendation of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, in its report published in May 2005, for the setting up of an Independent Police Complaints and Misconduct Commission (“IPCMC”) to function as an independent and external oversight body to investigate complaints about police personnel.

It is untenable for the Government to continue to ignore the dire need for the IPCMC, in the face of continuing cases of deaths in police custody.

The Malaysian Bar takes the view that every death in custody must be thoroughly and impartially investigated. Although Chapter XXXII of the Criminal Procedure Code requires that all custodial deaths be investigated by way of inquest, no inquest is held in most instances. Thus, the Malaysian Bar calls on the authorities to urgently implement comprehensive structural reform where inquests are concerned. The few recent enquiries into deaths of persons that occurred whilst in the custody of, or in or around the premises of, law enforcement agencies, have resulted in “open” verdicts. In this regard, the Malaysian Bar urges the Government to introduce a Coroners’ Act, and establish a Coroners’ Court with the following features:

(1) A clearly-stated aim, which will focus on identifying the deceased and ascertaining how, when and where the person died;

(2) The creation of an official position of a State Coroner, and Coroners. These would be appointed by the Prime Minister upon the recommendation of the Chief Justice. The State Coroner must be a Sessions Court Judge, ie a more senior position than that of a Magistrate, who currently conducts the inquests;

(3) The Coroner would be specially trained and be responsible for supervising investigations by the police, ensuring that all relevant evidence is gathered, presiding over enquiries, and making findings; and

(4) The specific use of pathologists and forensic pathologists. Only pathologists, or medical practitioners supervised by pathologists, may conduct post-mortems.

In the meantime, the Malaysian Bar calls for an immediate inquest into N Dharmendran’s death, as a matter of public interest warranting the highest level of priority. The police must render every assistance to the inquest and undertake a prompt and transparent investigation into the incident. In this regard, we are encouraged by the statement of the police authorities that they have set up a special task force to investigate the matter.

Those responsible for N Dharmendran’s death must be identified and be made to face the full force of the law immediately. The key question is who the culprits responsible for this heinous crime are. The police force owes it to the families of the deceased, the public and itself, to do all that is required to ensure that such incidents do not occur again. It is incumbent upon the police to continuously work to establish the confidence and trust of the public whom they are duty-bound to serve and protect.

As stated by the Supreme Court of India, death in police custody is “. . . one of the worst kinds of crime in a civilised society governed by the rule of law and poses a serious threat to an orderly civilised society. Torture in custody flouts the basic rights of the citizens . . . . and is an affront to human dignity. . . .”4 It is shocking that detainees continue to die under questionable circumstances while in the custody of the police.

The Malaysian Bar hopes that N Dharmendran’s death will not be relegated to a mere footnote in the disturbing history of custodial deaths in our country.

The Malaysian Bar expresses its deepest condolences to the family and friends of N Dharmendran.

Christopher Leong
President
Malaysian Bar

29 May 2013

Press Release: Recent Arrests and Actions by the Authorities are a Closing of Democratic Space

Friday, 24 May 2013 09:34pm
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The Malaysian Bar is appalled by the recent arrests of several individuals pursuant to the Sedition Act 1948. The Sedition Act, as with its predecessor the Sedition Ordinance, was conceived and designed by a colonial government to stifle fundamental rights and liberties, oppress the rakyat and deny them democratic space. Its sole purpose was to suppress and persecute the citizenry. The Sedition Act has no place in our modern democratic society and should have been discarded at Merdeka. The time for it to be dumped into the dustbin of history is long overdue.

It has been reported that Adam Adli, Tian Chua, Tamrin Ghafar and Haris Ibrahim were arrested for purportedly making seditious statements at a forum held on 13 May 2013. The continued use of the Sedition Act by the authorities directly contradicts the promise made less than a year ago by Prime Minister Dato’ Sri Mohd Najib Tun Abdul Razak in July 2012, that the 64-year-old law will be repealed and replaced in 2013 by a National Harmony Act. This was a clear admission and recognition by the Government that the Sedition Act was an anachronistic and repressive colonial law. The Prime Minister further stated that the new law will not prevent members of the public from criticising the government, quoting John Locke who said, “…the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”

The decision to arrest Adam Adli, Tian Chua, Tamrin Ghafar and Haris Ibrahim is therefore an unacceptable repudiation of the promise made by the Prime Minister. It further raises questions over the Government’s sincerity in pursuing transformation and greater civil liberties through legislative reforms.

The test of a genuine democracy is to allow words to be said even when we disagree with them. As much as one may not agree with the calls for public demonstrations to oppose the Government and question its electoral legitimacy, citizens nevertheless have a fundamental right to express themselves in such manner so long as they do so peacefully and there is no call for the use of violence. The authorities would be wrong to assume that a call to overthrow the government must necessarily be only by violent means. Time and again, the rakyat have shown that they can gather in public assembly in large numbers, yet peacefully. It is therefore unjustifiable and premature to preempt the exercise of fundamental rights and freedoms with assumptions or postulations of the use of violence. As much as dissent and opposition may be unpalatable, these must not be criminalised and silenced, but countered with open and healthy debate, reforms and concrete changes.

The Malaysian Bar is equally troubled by the arrest of 18 persons holding a peaceful candlelight vigil outside the Jinjang Police Detention Centre on 22 May 2013. The Malaysian Bar is disappointed that the police have said that they can no longer tolerate such candlelight vigils. It is not the role of the police to tolerate or otherwise, but it is their duty to facilitate the exercise of democratic freedoms. The police must bring themselves into the 21st century and cease suppressing the rights of the rakyat. The Malaysian Bar is concerned that these incidents may also signal a lurch towards greater authoritarianism, fascism and persecution of those whose viewpoints differ from those of the Government. It feeds an already widely held belief that there is an unhealthy symbiotic relationship between the police on the one hand, and Government on the other. In simple terms, “You protect me, I defend you”.

This may be seen from the failure of the authorities to take similar action in other obvious cases that more clearly evidence utterances and publications exhibiting seditious tendencies. It is inexplicable that there has been no similar prosecution against the likes of:

(a) Ibrahim Ali, for allegedly inciting the burning of Malay language bibles;
(b) Ridhuan Tee Abdullah and Zulkifli Noordin, for allegedly disparaging the Hindu religion and insulting adherents of the religion;
(c) The racial rhetoric of the Prime Minister in his allegation of a “Chinese tsunami”, followed by the Utusan Malaysia article entitled “Apa lagi orang Cina mahu?”; and
(d) Datuk Mohd Noor Abdullah, a former Court of Appeal judge, for allegedly accusing a racial group of treason and warning of retribution by another racial group.

While the Malaysian Bar is not advocating the use of the Sedition Act against these individuals, we abhor the discrepancies in treatment and the selective prosecution by the authorities in this regard. Further, the police should not have made an application for the remand of Tian Chua, Tamrin Ghafar and Haris Ibrahim, because it was an abuse of the process of the law. Given that the alleged incident occurred 11 days ago, the police should already have evidence of what was allegedly said. We commend the Magistrate for having refused the application for remand.

The Malaysian Bar strongly urges the authorities to withdraw the charge against Adam Adli, and not to prosecute Tian Chua, Tamrin Ghafar, Haris Ibrahim and the 18 individuals arrested at the candlelight vigil. We urge them to respect the freedom of speech and assembly as enshrined in the Federal Constitution. The Malaysian Bar also urges the Government to resist the temptation to quell dissenting voices by resorting to archaic and oppressive legislation. Otherwise, the promise of freedoms made by the Prime Minister will be nothing more than a mere platitude.

The Malaysian Bar deplores the seizure of copies of Harakah, Suara Keadilan and The Rocket, the newspapers of political parties PAS, PKR and DAP, respectively. We reiterate that the Printing Presses and Publications Act 1984 should be abolished. The condition imposed by the authorities on these three publications — prohibiting their sale and distribution to members of the public at large — is unconstitutional, as it breaches the right of the publishers to the freedom of expression. It is also a breach of the constitutional rights of the public to receive such information.

The recent arrests, prosecutions and confiscations by the authorities are manifestations of regressive and undemocratic conduct. The current environment is not reflective of a government aspiring to achieve world-class democracy. Rather than bringing about a society that is at ease with itself, it is instead creating an environment of grave concern.

The Malaysian Bar calls upon the newly elected Government to demonstrate its commitment to a continuing course of transformation and democratic reforms, not by rhetoric alone but by sincere and genuine action. To promote greater democracy, the Government should welcome diversity of opinion, not close democratic space.

Christopher Leong
President
Malaysian Bar

24 May 2013

Press Release: The Malaysian Bar Commends and Supports MACC’s Proposals

Thursday, 23 May 2013 08:17pm
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The Malaysian Bar commends and supports the initiatives by the Malaysian Anti-Corruption Commission (“MACC”) headed by its Chief Commissioner Dato’ Sri Haji Abu Kassim bin Mohamed. The MACC is an important and indispensable institution in the fight against corrupt practices and for the prevention of corruption.

The recent proposal by the MACC, through its Consultation and Corruption Prevention Panel (“CCPP”), as reported in the news media on 21 May 2013, that all elected representatives in Parliament and State Assemblies should declare their assets every three years, is a positive step towards promoting good governance, integrity and the rule of law.

In this context, the Malaysian Bar proposes that the need to make such declarations not be confined to elected representatives in Parliament and State Assemblies, but be extended to include all public officials.

The definition of “public official” under Article 2(a) of the United Nations Convention Against Corruption (“UNCAC”), which Malaysia signed on 9 December 2003, and subsequently ratified on 24 September 2008, should be adopted. It defines “public official” as:

(a) any person holding a legislative, executive, administrative or judicial office; and
(b) whether elected or appointed, whether permanent or temporary, whether paid or unpaid, and irrespective of that person’s seniority.

In this regard, the Malaysian Bar had applauded the announcement, made by the Chief Justice in January 2012, that superior court judges will be required to declare their assets.

The extension of the need for such declaration of assets to include all public officials would ensure that our practices are consistent with UNCAC standards. It would serve to encourage and create an environment and culture of transparency and accountability by public officials. It would also strengthen the various institutions in which these public officials serve.

The Malaysian Bar further supports the MACC’s call for:

(a) A total prohibition against family members and all government administrators, including cabinet ministers, chief ministers and state executive councillors, from bidding for government contracts; and
(b) An implementation and enforcing of a cooling-off period before retired civil servants are permitted to hold positions in the corporate sector or professional practice.

The Malaysian Bar however proposes that the cooling-off period be at least two years instead of one year, and that it be applicable not only to retired civil servants, but to all retired public officials of senior positions.

The Malaysian Bar calls upon the Government to introduce the relevant legislation to provide for mandatory compliance of the above proposals, and to empower MACC to have wide investigative powers to verify and audit the declarations of assets. At present, MACC only has powers of investigation when it has reason to suspect the commission of an offence, following a report of an offence made to it or from information it receives.

MACC should be given the fullest support in its work, and the Government should introduce further legislative provisions to provide for:

(a) MACC to have independent prosecutorial discretion and power, that is, it should have discretion to institute prosecutions and to conduct such prosecutions;
(b) MACC to report directly to Parliament; and
(c) MACC to have an independent Service Commission.

With these proposals in place, the Malaysian Bar is confident MACC will be strengthened and better placed to investigate every allegation raised of corruption. The Malaysian Bar is prepared to render its assistance to, and cooperate with, MACC to achieve the objective of preventing corrupt practices.

Christopher Leong
President
Malaysian Bar

23 May 2013

Press Release: Yayasan Bantuan Guaman Kebangsaan Concludes Groundbreaking First Year

Wednesday, 15 May 2013 01:46pm
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The Malaysian Bar was pleased to observe the first anniversary of the commencement of operations of Yayasan Bantuan Guaman Kebangsaan (“YBGK”) on 2 April 2013, which marked the conclusion of a dynamic inaugural year. Also known as the National Legal Aid Foundation, the groundbreaking YBGK had been launched by the Prime Minister of Malaysia on 25 February 2011.

The Malaysian Bar acknowledges the Government’s role in this bold initiative, and its commitment and support for the scheme.

YBGK represents a major milestone for the Malaysian criminal justice system, as it gives real meaning to constitutionally-enshrined rights such as access to justice and equality before the law. Under this scheme, free legal assistance is provided to all Malaysians — irrespective of their financial means — at the police station, the remand hearing and when they are charged in court. The existence of YBGK, one of the most successful public-private partnerships in Malaysia, means that every arrested person is given the right to consult, and subsequently be defended by, a legal practitioner.

In Peninsular Malaysia, the YBGK programme is administered through the network of Bar Council Legal Aid Centres that exist in each state. In Sabah and Sarawak, Jabatan Bantuan Guaman — the Government’s Legal Aid Department — works together with the Sabah Law Association and the Advocates’ Association of Sarawak to assist YBGK in its delivery of services.

Since its inception, YBGK has trained a total of 896 lawyers in Peninsular Malaysia, and 1,007 nationwide, over the course of 31 training sessions conducted throughout the country. In Peninsular Malaysia, YBGK operations have covered a total of 66 (out of 106) district police headquarters (Ibu Pejabat Daerah), and over 66 (out of 90) remand courts. YBGK assisted over 37,800 Malaysians in its first 10 months of operation. YBGK lawyers, who are paid for the legal services they render, are now involved in approximately 5,500 remands per month. This figure accounts for roughly 37 per cent of all remands in Peninsular Malaysia.

Prior to the establishment of YBGK, the vast majority of Malaysians were unrepresented during remand, resulting primarily from their lack of financial means to engage a lawyer. The fact that one in three remanded Malaysians now has access to legal representation is a testament to the dedication of Members of the Bar who do YBGK work, and the cooperation of law enforcement agencies — particularly the police — and the Judiciary.

Notwithstanding these achievements, a number of concerns remain, including the continuing difficulty faced by YBGK lawyers in gaining access to persons in police custody, and the lack of time and proper facilities at police stations, remand centres and courts for the YBGK lawyers to meet with the accused persons in private. These constraints adversely affect and detract from the full scope of accused’s constitutional right to legal representation.

The Malaysian Bar urges the Government to address the various shortcomings that have been raised, as the YBGK moves into its second year of operation. The Bar also calls for the YBGK to expand its ambit to serve non-citizens, in order to give meaning to the principles of non-discrimination and equal protection of the law, and to strengthen the rule of law.

The Malaysian Bar records its deepest appreciation to the Attorney General and his Chambers, Judiciary, Jabatan Bantuan Guaman, law enforcement agencies (notably the police), Advocates’ Association of Sarawak, Sabah Law Association, YBGK lawyers, and Bar Council Legal Aid Centres, for their diligence and cooperation, and for rising to the occasion in their efforts to ensure the successful implementation of the YBGK initiative.

The Malaysian Bar looks forward to the Government’s continuing support to ensure the success and sustainability of this comprehensive legal aid programme for those ensnared in the criminal justice system.

Christopher Leong
President
Malaysian Bar

15 May 2013

Press Release: There should be No Space for Racist Rhetoric in Malaysia

Wednesday, 08 May 2013 05:13pm
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The Malaysian Bar is troubled by the racially-charged comments reported in the media in connection with the recently concluded federal and state elections. Such divisive rhetoric has the effect of demonising Malaysians by virtue of their race, fostering ill will, and causing disharmony and disunity, and is a potential precursor of conflict. This is wholly irresponsible and should have no place in Malaysian politics and public discourse.

We ask that the Prime Minister show leadership for the country, and we welcome his call for national reconciliation. As a nation we must move away from racial divides; instead, we should emphasise commonalities and promote a shared Malaysian identity.

Malaysian leaders should not resort to reprehensible and dangerous gimmicks as a convenient camouflage for perceived weaknesses or shortcomings, or as comfort for disappointments. Only those bereft of ideas and leadership abilities would resort to such tactics. It serves no good purpose, but only self-interest, to speak of and emphasise the elections results along racial lines. Former leaders should retire graciously and gracefully, and refrain from expressing views that serve to fracture rather than build the nation. They should strive to nurture peace. Spewing venom and spreading discord must not be the Malaysian way, and right-thinking Malaysians must reject such practices.

The media also have a responsibility to refrain from writing and publishing articles that would foment racial discord. Whether as politicians, journalists, bloggers or netizens, those who participate in the public sphere should exercise freedom of expression responsibly and respectfully. Our leaders must not, and should not be seen to, endorse the publication and dissemination of racist messages. Ultimately, it was Malaysians who were substantially the electors.

The Malaysian Bar commends the police for their prompt response and action in investigating such publications, in particular their investigations of a national newspaper for its publication on 7 May 2013 and of comments on blogs.

Christopher Leong
President
Malaysian Bar

8 May 2013

Press Release: Unilateral Conversions of Minor Children are Unconstitutional

Tuesday, 18 June 2013 03:56pm
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The Malaysian Bar is concerned that the controversy surrounding the unilateral conversion of minor children to the religion of Islam by a newly converted Muslim parent, without the knowledge and/or consent of the non-converting parent, has once again arisen.

It has been reported that two children, aged 5 and 8, were converted in Negeri Sembilan in April 2013 by the estranged husband of a Hindu woman, without her knowledge. According to her, she and her husband had contracted a civil marriage in 2004, and she was unaware that her husband had embraced Islam. The Negeri Sembilan state Islamic Affairs Department has reportedly taken the position that consent by both parents is unnecessary, as children can be automatically converted once one parent embraces Islam. It is noteworthy that this is reminiscent of many similar cases, including the widely publicised cases of Shamala Sathiyaseelan and Subashini Rajasingam.

The unilateral conversion of minor children to any religion by a parent, without the knowledge or consent of the non-converting parent, creates social injustice, violates the rights of the non-converting parent, and is contrary to our constitutional scheme. In this regard:

(a) Article 12(3) of the Federal Constitution states that “No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own.”; and

(b) Article 12(4) provides that “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” (emphases added)

Article 160 governs the interpretation of the Federal Constitution, and it refers to the Eleventh Schedule (of the Federal Constitution), which states, inter alia, that “words importing the masculine gender include females”; and “words in the singular include the plural, and words in the plural include the singular”. Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by both parents, in cases where both parents are alive. Accordingly, unilateral religious conversions of any minor children in breach of this are unconstitutional.

There is presently confusion in the Bahasa Malaysia version of Article 12(4) of the Federal Constitution. Until 2002, the Bahasa Malaysia version, as published by the government printers, translated “parent” as “ibu bapa”, ie in the plural. Inexplicably, in the 2002 edition of the translation of the Federal Constitution, the word “parent” was translated as “ibu atau bapa” (emphasis added). It would also appear today that some Bahasa Malaysia translations use the term “ibu bapa” while others state “ibu atau bapa”. Nevertheless, it would seem that the authorities are now applying this new Bahasa Malaysia translation of “parent” as “ibu atau bapa”.

This is tantamount to an unauthorised amendment or alteration of the Federal Constitution, and is itself unconstitutional. An act of translation of the Federal Constitution cannot become an act of amendment of the Federal Constitution. The word “parent” in Article 12(4) must be read as “ibu bapa”, as found in the pre-2002 Bahasa Malaysia translations, and which is consistent with Article 160 and the Eleventh Schedule.

The Malaysian Bar recalls the Cabinet directive announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage. This is the correct constitutional position.

In any event, the Government had sought to make clear and reaffirm this position with the introduction of appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976. Those draft amendments, which were discussed among the Attorney General’s Chambers, Bar Council and various civil society groups, recommended that both parents must consent to the change of religion of a minor child. However, these proposed amendments were deferred by the Government for further consultation, and then apparently quietly forgotten.

The Malaysian Bar calls on the Government to ensure that the Bahasa Malaysia version of the Federal Constitution is corrected, so that the term “ibu bapa” is used. The Malaysian Bar also calls on the Government to implement appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to further make clear and provide assurance that the consent of both parents is obtained prior to any minor children being allowed to change his or her religion. The unilateral conversion of minor children to any religion should be unacceptable. The Malaysian Bar urges the Government to immediately legislate to resolve this controversy, which has occasioned untold hardship and social injustice to many citizens.

The Government must act now to put an end to this sorry state of affairs, and not remain in suspended animation in the face of human sorrow and misery.

Christopher Leong
President
Malaysian Bar

18 June 2013

Press Release: Legislation Inconsistent with Article 12(4) of Federal Constitution is Unconstitutional

Friday, 28 June 2013 09:34am
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The Malaysian Bar is concerned that section 107(b) of the Administration of the Religion of Islam (Federal Territories) Bill 2013 (D.R.1/2013) (“the 2013 Bill”), which has been tabled in Parliament, purports to provide that the consent of one parent alone is sufficient for the conversion of minor children to Islam.

We reiterate that the unilateral conversion of minor children to any religion by a parent, without the consent of the non-converting parent, is contrary to our constitutional scheme.

The 2013 Bill should reflect the meaning of “parent” contained in Article 12(4) of the Federal Constitution, read with Article 160 and the Eleventh Schedule of the Federal Constitution, which expressly provide that all words appearing in the Federal Constitution which are stated in one gender also include the other gender, and all words in the singular also include the plural.

Article 12(4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” (emphasis added). The same gender reference to “his” appears in Article 12(3).

If the words were to be taken literally as they appear, then Articles 12(3) and (4) would be read to only apply to conversions of males under the age of 18 years, and would not apply to females. This meaning or discrimination is clearly not the intention of such a provision in the Federal Constitution. A sensible application of the specific provisions in Article 160 and the Eleventh Schedule of the Federal Constitution would read the word “his” as also meaning “her”. This would likewise apply to the word “parent”.

Therefore, Article 12(4) must be construed as requiring the religion of children (whether male or female) under the age of eighteen years to be decided by one parent in cases where there is only one parent alive, and by both parents where both parents are alive. Any legislation inconsistent with this principle would thus be unconstitutional, unless there is an amendment of Article 12(4) beforehand.

While section 107(b) of the 2013 Bill maintains substantially the language of section 95 of the Administration of Islamic Law (Federal Territories) Act 1993, the Malaysian Bar urges the Government to use this opportunity to bring the provision into conformity with the interpretation of Article 12(4) set out above.

We note the Cabinet announced in April 2009 through the former de facto Law Minister, Dato’ Seri Mohamed Nazri Abdul Aziz, that the children of an estranged couple should remain in the religion of the parents at the point of their marriage. We also recall that the Government had sought to introduce appropriate amendments to the Law Reform (Marriage and Divorce) Act 1976 to provide that both parents must consent to the change of religion of a minor child. We urge the Government to renew its initiative to introduce these amendments. This is the correct constitutional position, and should be consistently reflected in all relevant legislation.

There is presently some confusion within some quarters regarding the relevance and weight of certain case law on this issue, in particular, the cases of Subashini Rajasingam v Saravanan Thangathoray decided by the Federal Court and Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors decided by the High Court.

The case of Subashini Rajasingam v Saravanan Thangathoray is not authority for the interpretation and meaning of Article 12(4) of the Federal Constitution and the word “parent” found therein. That Federal Court decision concerned appeals with respect to the High Court’s refusal to grant an application by the wife for interim injunctive relief against the husband, and the grant of an Erinford injunction pending the appeals to the Court of Appeal being disposed of, and subsequently pending the appeals to the Federal Court.

The Federal Court dismissed the appeals on an initial and technical point, that the petition for dissolution of the marriage and for ancillary or consequential relief (such as for custody of the children) filed by the wife was premature and not in compliance with section 51(1) of the Law Reform (Marriage and Divorce) Act 1976. That section states that a person may petition for dissolution of a marriage and seek ancillary or consequential orders only after the expiry of three months from the date of the other spouse’s conversion to Islam. In the Subashini case, the three-month period had not yet expired when the wife filed her petition for dissolution.

Therefore, the discussion by the Federal Court thereafter on the meaning of the word “parent” in Article 12(4) of the Federal Constitution is obiter dicta — other statements not required for the decision in dismissing the appeal — and is therefore not a binding statement of the law.

In any event, in discussing the meaning of the word “parent” in Article 12(4), the Federal Court in its judgment did not address Article 160 and the Eleventh Schedule of the Federal Constitution, as described above. As such, the decision of the Federal Court in this respect was not only obiter dicta, it was also per incuriam, that is, a decision of court that is mistaken as a result of oversight.
Likewise, the case of Nedunchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors was dismissed on a preliminary objection. The High Court in that case decided that the civil courts had no jurisdiction on the subject matter and that the Syariah Court had the jurisdiction, and thus the application in the High Court was dismissed. Any other discussion thereafter on Article 12(4) and the meaning of the word “parent” was therefore again obiter dicta, and not binding law.

Any legislation that is inconsistent with Article 12(4), read with Article 160 and the Eleventh Schedule of the Federal Constitution, and that purports to provide that the consent of only one parent is sufficient for the conversion of a minor to any religion, would therefore be unconstitutional unless there is a prior amendment of Article 12(4).

Christopher Leong
President
Malaysian Bar

28 June 2013

Press Release: A Right Step in a Long and Unfinished Journey

 

Sunday, 30 June 2013 02:16pm
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The Malaysian Bar welcomes the decision by the Attorney General to withdraw the Government’s appeal at the Court of Appeal in the case of Chayed bin Basirun & Ors v Noorfadilla bt Ahmad Saikin.

The legal question in Noorfadilla’s case arose when the Malaysian Government revoked and withdrew her appointment as a Guru Sandaran Tidak Terlatih (“GSTT”) because she was pregnant. The High Court held that this act amounted to gender discrimination and constituted a violation of Article 8(2) of the Federal Constitution, which deals with equality before the law.

What was significant in this case was the High Court’s reliance on the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), to which Malaysia acceded in July 1995, in clarifying what is meant by the terms “equality” and “gender discrimination”. To quote from the judgment of the High Court:

… the word “gender” was incorporated into Article 8(2) of the Federal Constitution in order to comply with Malaysia’s obligation under the CEDAW. It is to reflect the view that women are not discriminated. . . . In Article 11(2)(a) of CEDAW, it provides that State Parties shall take appropriate measure to prohibit, subject to the imposition of sanctions, dismissal on the grounds inter alia, of pregnancy. . . . [CEDAW] has the force of law and [is] binding on members states, including Malaysia. [sic]

The High Court also stated that:

. . . in interpreting Article 8(2) of the Federal Constitution, it is the Court’s duty to take into account the Government commitment and obligation at international level . . . there is no impediment for the Court to refer to CEDAW in interpreting Article 8(2) of the Federal Constitution. Hence, applying Article 1 and 11 of CEDAW I hold that pregnancy in this case was a form of gender discrimination. The plaintiff should have been entitled to be employed as a GSTT even if she was pregnant. Further, the plaintiff was pregnant because of her gender. Discrimination on the basis of pregnancy is a form of gender discrimination because basic biological fact that only women has the capacity to become pregnant.” [sic]

Notwithstanding this welcomed decision, the Malaysian Bar calls upon the Government to do more to eradicate gender discrimination in Malaysia. Apart from the amendment to the Federal Constitution, which was made in 2001, the Government has not passed any specific legislation to prohibit gender discrimination. Indeed, in the first test case after the Federal Constitution was changed, Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor in 2004, the provisions of CEDAW were also invoked but without success. That decision, which still stands today, held that the forced resignation of an airline stewardess after becoming pregnant was a matter of private contract law, and not gender equality or discrimination.

A further disturbing decision was that of the Court of Appeal in March 2012 which upheld the right of an employer, Guppy Plastics Industries Sdn Bhd, to enforce the retirement of female employees at an earlier age than male employees.

Enacting specific anti-gender discrimination legislation will go a long way towards promoting and protecting gender equality in Malaysia. The government should also consider addressing the other concerns of the Committee on the Elimination of Discrimination against Women expressed in their Concluding Observations issued after their review of Malaysia in May 2006. Many of those concerns remain outstanding, notwithstanding the passage of seven years.

The action of the Malaysian Government in withdrawing its appeal in the Noorfadilla case is a step in the right direction. However, the journey remains long and unfinished.

Christopher Leong
President
Malaysian Bar

30 June 2013