Monday, October 26, 2015

Tipping the scales - have our courts lost the balance?

In PP vs Kok Wah Kuan [2007] 5 MLJ 174, the Federal Court said (Abdul Hamid Mohamad PCA writing for the majority): “Our constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine.
"To what extent the doctrine applies depends on the provisions of the constitution. A provision of the constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly, no provision of the law may be struck out as unconstitutional if it is not inconsistent with the constitution, even though it may be inconsistent with the doctrine.
"The doctrine is not a provision of the Malaysian constitution even though no doubt, it had influenced the framers of the Malaysian constitution, just like democracy. The constitution provides for elections, which is a democratic process.
"That does not make democracy a provision of the constitution in that where any law is undemocratic it is inconsistent with the constitution and therefore void.”
If the doctrine of separation of powers does not exist in the constitution, the decision of the Federal Court in the Kok Wah Kuan case suggests that the judiciary will not act as a strong check and balance against the excesses of either the legislature or the executive, i.e the government and Parliament/state assemblies respectively.
Five recent decisions of the Malaysian courts, at either Federal Court or Court of Appeal level, appear to confirm this observation.
The courts in these five cases have shown little inclination to protect the individual and uphold the individual’s fundamental liberties in the face of prohibitions or limitations from the government through the application of provisions of the law enacted by either Parliament or state legislatures.
What the courts appear to be doing in these five cases is, on the one hand, to give a wide interpretation to any provision that allows the government or Parliament to restrict the scope of fundamental liberties. Whilst, on the other hand, to give a narrow interpretation to the rights of the citizen or individual, and to any challenge to the restriction of that right.
In Azmi Sharom’s case, the Federal Court in effect held that pre-Merdeka legislation, namely the Sedition Act 1948, which defined and criminalised seditious speech, need not be applied subject to such modifications as would be necessary to take into account of provisions with respect to the right to freedom of expression in the constitution.
The transitional provisions accorded to Parliament to accept and preserve pro-colonial pre-Merdeka prohibitions against free speech were held to outweigh any obligation on the part of Parliament to apply its mind to ensure that restrictions were only imposed for the purposes permitted by the constitution.
Can assemble but must pay price
In the PP vs Yuneswaran case, the Court of Appeal held that it was lawful for Parliament to criminalise the failure of an individual to give 10 days’ prior notification of the holding of a peaceful assembly as required under the Peaceful Assembly Act 2012.
The court took the view that the Peaceful Assembly Act 2012 “contains procedural provisions that are regulatory in nature. The non-compliance with those procedures does not stop a citizen from exercising his right to assemble peaceably and without arms. In other words, there is really no restriction on the right to assemble peaceably and without arms...”
What the court seems to be saying is that a citizen can choose to exercise the right to assemble peaceably and without arms without giving the required prior notice, but then has to pay the price for it.
The penalty for non-compliance is not a restriction of that right, the courts maintain. The courts have not fully appreciated that allowing a criminal sanction to operate in relation to procedural non-compliance is a de factorestriction of the right to assemble peaceably and without arms.
A freedom to assemble that causes a commission of a criminal offence cannot be said to be a “freedom”.
In the ZI Publications case, the freedom of expression of an individual Muslim, Ezra Zaid, was allowed to be circumscribed by state law which the constitution allows to regulate the personal law of a person professing the religion of Islam.
Instead of defining a restriction on a fundamental liberty narrowly, the court generously interpreted the provisions of a state religious enactment as being of sufficiently wide scope to restrict an individual’s right to freedom of expression granted by the constitution.
A wide ambit was given to the scope of “personal law”, which appears to include freedom of expression. In balancing the constitutional freedom of expression with a constitutionally-permitted regulation of the religion of Islam, the Federal Court came down in favour of the state over the individual.
In this case the offending act was not even committed by the individual himself, but by a company.
However, all concepts of separate legal personality were cast aside and the acts of the company, and of the company’s employees, were deemed the act of the individual, for whom the company was the alter ego, since the individual was both a director and majority shareholder of the company.
The fact that at the material time the book published by the company was not listed as a prohibited publication under the relevant legislation, the Printing Presses and Publications Act 1984, was not deemed to be of sufficient significance.
Ground-breaking decision set aside
Similarly, in State Government of Negri Sembilan & Ors vs Muhammad Juzaili & Others, a case involving three transgender women charged with the offence of cross-dressing in Negri Sembilan, Islamic “personal law” once again trumped fundamental liberties.
In this transgender case, and in the fifth decision, See Chee How & Anor vs Pengerusi Suruhanjaya Pilihanraya Malaysia, the courts chose however to arrive at their decision on the basis of legal procedure rather than on the substantive issues.
The Federal Court used the issue of wrong procedure to set aside the ground-breaking rights-upholding decision of the Court of Appeal in favour of the three transgender women.
In denying See Chee How and Pauls Baya leave to appeal, the Federal Court held that the arguments in the case failed to meet the threshold for the granting of leave (permission) required by either Section 96(a) or (b) of the Courts of Judicature Act 1964.
The Federal Court also denied leave on the ground that the application was academic, given that the Election Commission had already completed its constituency re-delineation processes and submitted its report to the prime minister as provided for in the constitution.
The fact that the report had not yet been placed before Parliament, and was therefore not yet acted upon, was not considered relevant.
A more detailed analysis of some of these five cases awaits the release of full written judgments and reasoning.
However, these five cases suggest the reluctance of the courts to play their proper role as guardians of the fundamental liberties of individuals.
All too easily, the courts appear prepared to subordinate the rights of the individual to that of the state, even to the extent of giving a generous interpretation to what ought to be narrowly-construed restrictions of fundamental liberties.
An active protection in favour of individual liberties does not, at this point in our journey of nationhood, seem to be the preferred flavour of the Malaysian courts.

ANDREW KHOO is co-chairperson of the Human Rights Committee of the Bar Council Malaysia. He writes here in his personal capacity.

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Monday, October 12, 2015

What does a prison for mothers with infants look like?

Babies and children living behind bars with mothers in Victorian jails alongside murderers

September 5, 2015 7:00pm
A guard watches an inmate mother put her baby into his cot.
NEARLY a dozen babies and children are living behind bars with their mothers in Victorian jails alongside infamous murderers.
The 11 children, all under five years old, are sleeping in cells with their criminal mothers in frequently overcrowded jails.
Spread between the maximum security Dame Phyllis Frost Centre in Deer Park and minimum security Tarrengower Prison near Bendigo, the children have to leave their mothers when they reach the age of five — either into the care of family or a foster carer.
The number of incarcerated children reflects the dramatic increase of inmates entering the women’s prisons over the past 10 years.
The DPFC facility houses 356 inmates including some of Australia’s most notorious criminals, including gangland matriarch Judy Moran, 71, child killer Donna Fitchett, 56, and student attacker Sarah Cheney, 31.
Critics have been outspoken about inmates raising children in jails, saying it’s not in the best interest of a child to be tied to mothers with deep-rooted criminal problems.
              However, Geelong-based psychologist Helen Barnacle, 61, disagrees, saying the Mothers and               Children Program should be expanded to accommodate more children to be with their mothers               in jail.

She also believes fathers in minimum security jails in Victoria should be allowed to apply for the same right.
IT’S a bitter sweet scene in the grassed exercise yards of Victoria’s two women’s prisons when the children come out to play.
They giggle, they run. They demand everyone and anyone join in.
Piggy backs are their favourite.
“Again, again,” the toddlers squeal, tugging on the prison-issue green trousers of their assembled “aunties” meandering around chatting during their morning exercise.
Apart from the games and the usual, much-enjoyed attention they are just happy to be racing around outside.
In the spring sunlight, gulping in the fresh air.
Freedom, of sorts.
For these young children spend each day of their young lives locked up behind the alarmed, barbed wire walls of prison, alongside those being punished for serious crime.

A prisoner walks her son around the Dame Phyllis Frost Centre grounds.

They are the innocent ones.
Their mothers and other inmates? Not so much.
Drug offences. Fraud. Grievous bodily harm. Manslaughter. Murder.
All of the above.
Many of the children have literally been born into Victoria’s corrections system, going straight from a guarded hospital delivery room at Melbourne’s St. Vincent’s Hospital to a basic cot in an austere, slate-grey jail cell with their mother far out of the city.
A world away from our trendy cafes where tribes of glossy carefree mums gather, arriving with their offspring in $1600 Bugaboo strollers and ordering soy lattes without a care for the price tag.

A prisoner with her baby son in her cell at the Dame Phyllis Frost Centre.

Sunday Herald Sun investigation has uncovered the daily regimen for the 11 children and babies currently doing time with their inmate mothers across the state.
All are aged between a few months and just under five years old.
The children who live behind bars at Victoria’s two women’s prisons, whose populations have exploded over the past ten years, have little experience of the outside world.
At least half spend their lives in the maximum security Dame Phyllis Frost Centre (DPFC) in Deer Park, which currently has 359 inmates and for nearly 20 years has been dogged by self-harming, suicide attempts and frequent scandal.
Here, the children are growing up amid some seriously infamous Melbourne lady folk.
These include gangland matriarch Judy Moran, 71; swinging killer Bernadette Denny, 47; and pensioner murderer Rachel Hegerty, 38, to name just a few.
All are serving sentences at DPFC for hideously violent murders which shocked Victoria.
The other children live with their mothers (and far less dangerous comrades) in Tarrengower, a minimum security facility near Bendigo which currently houses 51.
Jail life for the children, along with the endless regimen of rules, the noise and the countless locked internal doors, is their home.
And for many, always has been.
They will be granted freedom of course.
But not until they reach school age.
A former prisoner has described in detail to the Sunday Herald Sun the devastating moment when the child finally leaves — a day that justice sources say infact engulfs the entire prison with sadness.
Helen Barnacle, 61, who fought for the rules to be changed to keep her baby daughter, Alice, now 35, in jail, has told how she felt “suicidal” as she handed over her child at the age of four.
“I just remember walking, carrying her in my arms and walking down to the gate knowing that I was going to hand her over to my brother,” Helen says.
“I didn’t think it was okay to let her see me crying and so upset about being separated from her.”
Sources are keen to stress however, that the decision to allow a child to live with their criminal mother being punished in jail isn’t taken lightly.
All incarcerated mothers — either on remand or serving sentences — in the two women’s prisons are eligible to apply to the Mothers and Children Program to care for their young children.
Unsurprisingly, conditions for approval are extremely strict; the final decision rests with the Correctional Services Commissioner following a number of detailed reports from justice and welfare agencies including Child Protection and the Quality and Compliance Unit.

A guard at Dame Phyllis Frost Centre oversees a prisoner with her baby son in a special unit.

“Everything is looked into including any history of harm and the parenting abilities of the mother,” a source says.
“They don’t just let the children in for anyone that asks — what is best for the child is always the priority.”
Often, corrections management have to make extremely tough — and often heartbreaking — decisions.
“Because of frequent overcrowding there are always mothers arriving into the jails wanting their children to be with them,” the source says.
“But if they are considered a danger to their child because of drug addiction or a violent past, or if their partner or a grandparent is considered a more suitable primary carer, the baby or child is not allowed to live in jail with them.”
If there is a lack of family support the children are put into foster care.
“There are a lot of very sad mothers without their children in jail,” the source adds.
But where possible, the mothers are always given access to their children in some other form.
They include a residential visits program at Tarrengower which allows eligible mothers to have children stay with them for up to three days.
At the same prison there is also a school holiday program where children under 16 can stay for up to four days.
And both Tarrengower and DPFC allow for weekly visits between a mother and child.
The most highly complicated situations unfold however, when prisoners arrive already pregnant.
A corrections source reveals how officers were assigned to guard the door of a delivery room on a shift rotation in recent years while a DPFC inmate gave birth.
While the child was delivered safely, what happened next shocked the normally hardened guards to the core.
“The mother was so addicted to heroin when she came into jail she had been taking high levels of methadone,” the source says.
“So as a result as soon as the baby was born it started to go into withdrawal. The screams from the newborn were nothing like they had ever heard from other babies.
“It was horrendous apparently. They were very distressed because they could hear it was in terrible pain.”
In distressing scenes, the mother steadfastly refused to give doctors permission to give the baby even a tiny amount of methadone to ease the symptoms.
A dose which would gradually have been reduced to nil over several months.
“She kept screaming that she didn’t want the baby to end up like an addict like her.
“It was understandable, but the baby was going through agonising cold turkey just like any other adult addict would be.”
For those mothers that do win the right to keep their children with them, in DPFC there is an allocated mother and baby unit.

A prisoner with her baby son in the Dame Phyllis Frost Centre mother and baby unit.

There are eight cells, where the mothers sleep on a single bed with their child in a cot or mattress alongside them, leading off a communal lounge and kitchen area, complete with laundry and a TV.

The kitchen area in the Dame Phyllis Frost Centre’s mother and baby unit.

During the hours of 7.30pm and 7.30am the main door is bolted but the cell doors are not locked, leaving the women to feed and settle their children as a group.
“They each are given a weekly allowance so they prepare their food together in the kitchen,” a source says.
“The kids generally enjoy cereal for breakfast and pasta dinners just like any other Australian kids.”
Each baby and child is also given an allowance so that the mother can purchase nappies, creams and baby food from a small hatch which serves as a prison shop during the day.
During part of the day the women are free to leave their unit and push their strollers around to visit friends in other units or into the garden or “town square”, as it is dubbed by inmates and staff.
“The children run around on the grass and get heaps of attention, they lighten the whole mood,” a source says.
“With so many of the female prisoners missing their own children, they are totally spoiled and adored wherever they go.
“Prisoners read to them, knit them jumpers and give them chocolate from the shop.”
At Tarrengower, the children attend weekly music and art classes.
There are also weekly programs for the mothers.
While the outside play area at DPFC has been closed for two years after a shade sail broke, there is an inside soft play area.

Children are able to draw and do other normal activities in prison.

An in-ground outdoor pool in the grounds of DPFC is out of bounds for the young inmates however.
“It isn’t life guarded so they are not allowed,” a source says.
In recent years a female prisoner farcically leapt into the pool after being chased by guards due to bad behaviour.
“She started swimming in circles and causing a scene which was pretty amusing, but it’s probably for the best that the children stay out anyway incase that happens again,” a source said.
Most importantly, sources say they have never known an occasion at either prison where a child has been injured or harmed by inmates.
“They are so respected and cared for by both staff and inmates,” the source says.
“If any commotion kicks off they would be withdrawn by staff and their mothers instinctively back off with them anyway.”
The only common prison element they can’t be protected from is the noise and frequent verbal arguments among the prisoners.
“But then the fact is they would probably be in a similar situation if they were on the outside living in a big public housing block in the city,” a source says.
The children also have to endure the repetitive regimen of prison life.

Prison can be a stark, cold and sterile place at times for the children of inmates.

Most notably the head counts — or musters as they are dubbed inside — which happen four times a day.
An announcement comes over the loud speakers at random, unpredictable times saying: “Attention DPFC — the count will be in ten minutes. Please be by your cell door with your ID and your TVs turned off.”
There are measures in place that if a baby or child is missing at the count there would be a re-count.
And if the infant was still missing all units and prisoners would go into lockdown under the child was found.
But so far a need for that emergency plan to be enacted has, thankfully, never arisen.
“The older toddlers are so institutionalised they run to their mother’s side by the cell and practically stand to attention when they hear the familiar announcement over the loud speakers,” a source says.
“That’s sad to see because you wonder how they will find life on the outside.”

Some experts question whether jail life is a healthy environment for babies, toddlers and young children.

Each mother with their child with them in jail is allowed to nominate one “carer” from among the other female criminals inside.
The CVs of the applicants might be a little blemished, to say the least.
But, naturally, there is a screening process and the cherished role of carer in the jail is apparently taken very seriously by the chosen few.
Joyous distractions like this are at a minimum of course.
The carers look after the child when the mother has a medical appointment or a court appearance — or simply when she needs a break.
“Like any other mum sometimes they just need time out from the child and a bit of peace,” the source says.
Sometimes, a child will be released into the care of their father or relative on the outside for a short time.
And when they turn four, authorities take them to outside kindergartens one or two days a week to start their integration with ordinary children.
While the prisoners adore the children there are some inmates at DPFC in particular that the infants will never come into contact with.
And for good reason.
Frequently extremely violent to staff, Sarah Jane Cheney, 31 — the woman jailed for eight years for the stabbing of a La Trobe University student — is thankfully nearly always kept in isolation.
And Donna Fitchett, 56, the Melbourne mother twice convicted of murdering her two sons, is also kept in isolation away from any chance of coming into contact with babies or children.
She’s not exactly the mothering type you’d want close by.
The former nurse drugged and murdered sons Thomas, 11, and Matthew, 9, at their Balwyn North home in September 2005.
After an appeal she was jailed for 27 years in 2010.
“The children living in the prison will never get anywhere near these prisoners, the staff make sure of it,” a source says.

Grey walls and barb-wire fences surround the mums and their children at the Dame Phyllis Frost Centre.

But these safety measures aren’t enough for some critics who argue that the fact the mothers have even entered prison in the first place demonstrates they have serious problems.
Some have even suggested it is a selfish move akin to child abuse and not in the best interests of the child.
“Research suggests that this is just not a good gamble for these children to tie their fate to these women who have such deep personal struggles,” US law professor James Dwyer argues.
However, Helen Barnacle strongly disagrees.
Helen was five months pregnant when she was jailed for drug offences in 1979 and sent to Victoria’s Fairlea Prison, which has since closed.
She credits her strong relationship with daughter Alice due to her being allowed to eventually stay with her in jail.
“From the moment she was born I felt overjoyed,” Helen told the Sunday Herald Sun.
“It was probably the first time perhaps that I felt real love and that I had a proper role in life.
“But when she turned one I had to hand her over which was utterly devastating. I was so distraught I literally couldn’t speak, I felt suicidal. I knew if I lost the early years with my child we would never have a proper relationship.
“It wasn’t just about me, it was about Alice’s future. She needed her mother.”
The former heroin addict, who is now a well-respected psychologist living near Geelong, appealed and rules were changed.
As result children in Victoria could stay with their mothers in prison until the age of four.
Alice herself remembers a happy time, especially the singalongs with her mother and the other inmates.
“I had about 50 women all loving me and I was always going off to dinner with someone and trying to get chocolate off someone else and just having fun,” she says.
“I just remember fun things.”

Helen Barnacle, 61, and daughter Alice, 35. Helen fought for the right to keep baby Alice in Fairlea Prison until she was four years old.

Helen was left grief-stricken when she had to hand over Alice at the age of four to her brother Ron to care for until she was released.
“I got to the gate handed her through and Ron took her, and then turned around and walked off. I’ll never forget her tiny hand waving at me as she was carried away.”
Helen was released four years later from prison on the November 24, 1987, just before her 34th birthday.
“The best thing that happened that day was when I went to Ali’s school and I just remember her looking around at all the mums and spotting me and this big smile on her face and we just hugged each other,” Helen says.
“I was afraid to let her go but then I realised I would never be forced to let her go again.”
Today, the age children have to leave is five and staff and fellow prisoners do their best to make it a positive experience.
“They usually put on a farewell party with a BBQ, cake and balloons on the day the child goes, so they feel like it’s a celebration” a source says.
But it’s all a facade.
In truth, everyone is devastated.
“A whole feeling of doom comes over the whole prison in the days leading up to a child leaving,” a source says.
“Everyone is attached to them by the end, even the guards.”
But for the mother herself of course, the emotional hangover of their child leaving for the world outside ahead of their own release is primal and unrelenting.
“It’s the worst feeling I’ve ever experienced,” Helen says.
“I didn’t want her to see me cry, but once she was gone, that’s all I ever did until I saw her again.”
Twitter: @luciemorrismarr

Thursday, April 30, 2015


New curbs for Malay bibles

By Bob Teoh
(originally published on Malaysiakini)

Putrajaya has unilaterally introduced new curbs on the import of the Alkitab, or the Malay-language Bible, under the Home Ministry’s new SOP or standard operating procedures. It also affects the import and use of other Malay-language Christian publications.

But Joseph Kurup, the de facto national unity minister who unveiled the SOP last week is quick to assure church leaders that Barisan Nasional is “sworn” to protect their freedom of religion as guaranteed by the federal constitution.

This is far from the truth. The new SOP specifically targets Christians and concerns mainly the import and use of the Alkitab. Such imports are now subject to a law that was originally intended only for Muslims - the Printing of Qur’anic Texts Act 1986. Importers must now apply to the Qura’nic Text Division of the Home Ministry which has the final say whether such imports are allowed.

The sole criterion is that such publications cannot contain the word ‘Allah’. This is clearly in contravention of constitutional provisions for freedom of religion.

Article 11 (3a) of the federal constitution states, among other things, “Every religious group has the right to manage its own religious affairs.” The right for Malay-speaking bumiputra Christians to have their own Scriptures in the Malay language is an inalienable universal human right and Putrajaya should not interfere in ecclesiastical matters of other faiths. Two-thirds of the church in Malaysia comprise Malay-speaking bumiputras in East Malaysia.

What is alarming is that the new SOP comes at a time when the very constitutionality of the prohibition of the use of the word ‘Allah’ to refer God by Bumiputra Christians is still being litigated in the courts known as the Jill Ireland Sarawak and Sidang Injil Borneo (SIB) Sabah cases. To introduce the new SOP at this stage smacks of not only religious hegemony and arrogance but it also borders on contempt.

Although the new SOP also affect churches and bumiputra Christians in peninsular Malaysia most, neither Kurup nor the Home Ministry has consulted nor briefed them.

A Christian leader in Petaling Jaya who declined to be named pointed out, “I am of the view this is another shoddy attempt to please the religious bureaucrats on their terms so that the BN government is seen to have done something. In the end the church suffers and the democratic space and fundamental liberties is reduced to our detriment as the various G25 or G47 or G40 groups have said. This has got to stop here.”

But Kurup (left) was reported as having told church leaders in Kuching: “We are not in the business of prosecuting our own people.” He went on to say, “The Barisan Nasional government is a responsible government. We are sworn to protect the federal constitution and the freedom of Malaysians to practise their respective religious faith.”

In Kota Kinabalu he was reported to have said: “I wish to reassure all those present that the BN government is responsible in fully defending the constitution and freedom of religion, something that the prime minister always reminds his cabinet ministers whenever matters such as this arise in cabinet meetings.”

It was Kurup who first disclosed that Putrajaya would come out with an SOP following the confiscation last November of 574 Bahasa Christian books and 419 CDs from Medan at the Low-Cost Carrier terminal in Sepang that were en route to Kota Kinabalu. Kurup intervened and the publications were released. He then said church leaders would be consulted in drafting the new SOP.

Stunned into silence

This again is far from the truth. There were no such consultations. Church leaders were stunned into silence when Kurup met them on April 16 in Kuching and one week later in Kota Kinabalu to announce the new SOP.

The briefing was by Hashimah Nik Jaafar, head of the Home Ministry’s Qur’anic text division. She only presented the new SOP on PowerPoint slides but those present insisted on being given a copy. Although almost similar in content, copies of the SOP given at the two briefings were not the same. For instance, one version states that the point is entry for the publications is at KLIA2 while the other did not specify any particular airport.

Those present said neither Hashimah nor Kurup would answer any query other than what was presented on the PowerPoint slides. There are no provisions for such publications coming in through ports or land borders in East Malaysia.

Essentially the nine-point new SOP requires importers of Bahasa Christian publications to apply for an import permit from the Qura’nic texts division of the Home Ministry. This is currently not required. Shipment on transit to Sabah and Sarawak is permitted only with a valid “immediate boarding” ticket.

However, any publication with the word ‘Allah’ is permitted to enter peninsular Malaysia on the basis “only for personal use.”  He did not say how the Home Ministry is going to monitor “personal use”.

The bone of contention of the new SOP is that the whole procedures regarding import and use of Bahasa Christian publications is solely and arbitrarily under the jurisdiction of the Qur’anic texts division. The law relied on is the Printing of Qur’anic Texts Act 1986. However, there is no provision in this act to implement the new SOP. Clearly the SOP is defective and ultra vires the constitution.

The core issue of this controversy is the use of the word ‘Allah’ to refer to God which Putrajaya and the apex court (in the Catholic Herald case) have declared to be the exclusive right of Muslims simply on the basis that Islam is the religion of the federation. This is ludicrous, of course. This makes Malaysia to be about the only country having claim to such exclusivity for an Arabic loan word.

According to a recent book published by the Kuala Lumpur-based International Institute of Advanced Islamic Studies (IAIS) titled Shariah and Legal Pluralism in Malaysia by Constance Chevallier-Govers, a law professor from France, “The Allah’ ban is rather ‘unusual in the Muslim world.”

She added, “There are even two verses in the Qur’an which show without ambiguity that the word ‘Allah’ can be used by ‘People of the Book’ (Jews and Christians).”

Claimed exclusivity to slew of loan words

Under the various Islamic state enactments there is a slew of some 35 Arabic loan words which the Putrajaya also claim exclusivity to Islam such as doa (pray) which bumiputra Christians must substitute as memohon while nabi (prophet) should be propet, wahyu (revelation) as revelasi, bersyukur (giving thanks) as berterima kasih and Alkitab (Bible) as Baibel.

Kurup, who himself is a bumiputra Christian from Sabah, should understand the ramifications of the new SOP and its absurdity better. In any case, the SOP is the job of the Home Ministry and not under his. He should stop acting like a mere messenger for the cabinet or Home Ministry at the risk of becoming a false prophet.

The new SOP, or standard operating procedures, in its present form is both wicked and unreasonable. It should be withdrawn immediately to make way for consultations with all stakeholders.

This should include not just church leaders but leaders of other faiths even with the respective Islamic authorities to preserve the sanctity of the constitutional guarantee of freedom of religion while recognising Islam is the religion of the federation.

BOB TEOH was formerly secretary-general of the Confederation of Asean Journalists.

Friday, March 20, 2015

PAS and the hudud imbroglio

PAS’s folly - awareness and containment

(From Malaysiakini)

COMMENT In the introduction of the Kelantan hudud bill its architect declared that those who question whether the legislation would bring in equal justice are “liars and immoral”.

This unbecoming language is what one expects of a fanatic dictator, rather than a genuine democratic leader. It speaks to the decay in the political fabric of Malaysia that is coming from leaders, who have lost the plot in having a national consciousness and the broader decline taking place in democratic governance. Given the passage of the Kelantan hudud bill, what are the likely political implications that will evolve from this measure?

Some political parties will begin the politics of containment, while others will fan division and will continue to use hudud for political gains. As of now, it is important to remember that no hudud measure will take effect. They are all measures on paper.

With respect to those who favour these measures, on many levels hudud does not holistically reflect the ideas of justice embodied in Islam or any faith for that matter and brings to light serious questions about fairness and administration of the rule of law for all of Malaysia’s citizens.

The stoning, chopping and whipping urged in the enactments are now threats over the public without adequate protections; they make up the politics of fear that has been deeply engrained in the Malaysian political landscape.

No implementation does not mean that there measures are not unimportant. Quite the contrary. The people of Kelantan in particular will be hurt economically by the bill, as its leaders across the political divide failed them in thinking holistically about their development.

Real questions can be asked about priorities and timing, namely whether Kelantan in the wake of the floods should be introducing these measures. Questions about fairness also can be asked about who will be potentially affected by these measures, those who engaged in corruption that contributed to the flooding or ordinary citizens.

These are beyond the issues of minority rights, religious freedom and the rights and protections of the constitution that emotionally divide the country in views.

There will be other important political tests ahead as well. Unlike in the two previous pieces, this piece looking at the broader political consequences of the passage of the bill yesterday. The fluidity of Malaysian politics will create opportunities ahead. The hudud issue will likely only remain a weapon of division if national leaders continue to wield it as one.

Sharing blame - a missing ‘vote of consciousness’

In opting for a touted ‘vote of conscience’ for Umno members in Kelantan, the Najib Abdul Razak government did not lead. In fact, the Najib administration effectively took the stance of allowing the reintroduction of Kelantan hudud law to move forward without opposition.

This was driven by Najib’s weakness, not strength. It will feed extremist religious divisions and make the task of governing Malaysia’s multi-ethnic mosaic more difficult. Najib’s inaction speaks to his failing leadership as prime minister and as the leader of Umno.

It is sadly not the first time when a divisive issue emerged and the PM went missing. Najib may not be able to survive in office until GE14 and his inaction on the hudud law will only make his struggle for survival in office harder.

Najib’s weak leadership over hudud does in fact have damaging consequences beyond himself. By most measures, Malaysia’s position in the region economically and politically has taken a serious beating in the last year, from airline disasters to the recent poor performance in the stock market caused by the shocking 1Malaysia Development Berhad (1MDB) scandal.
The Kelantan hudud bill will add to these negative perceptions, and hurt the country by discouraging investment and reinforcing the view that the country does not effectively offer protections in the rule of law.
To date, every country or region that introduced hudud - all in political efforts to shore up political legitimacy - has suffered an economic and political backlash. Malaysia does not have the resources of a Saudi Arabia and Brunei to weather yet another storm as effectively.

For Najib, there will be two tests ahead for the hudud bill. The first will be whether the Umno leadership will move ahead with implementing hudud legislation at the national level. PAS with less than 10 percent of the parliament do not have the numbers to go ahead. Umno will be the national driver.

Umno’s hudud partnership with PAS is driven by the goal of destroying the opposition and PAS in particular. Of late, the actions of the Najib government have repeatedly shown an apparent willingness to carry out actions that damage the country to hold onto power.
A national constitutional amendment allowing hudud is supposedly currently not on the cards, despite PAS ulama grandstanding, but given the climate of crisis and weakness that surrounds both Malay parties and the apparent void of national statesmanship leadership of Najib’s government, not to be ruled out.
The second test is whether Najib will direct its members to follow a ‘vote of consciousness’ rather than one of ‘vote of conscience’. This is a vote that at its core gives all Malaysians confidence in their place in the country and faith in their constitution. It is not one that adopts the practice of the ‘politics of tyranny or the majority and punishment’ carried out in the supposed name of democracy by the conservative PAS ulama.

Whether Najib will be conscious enough to provide wise national leadership in his politically beleaguered state is unclear. One should not underestimate the betrayal, fear and anger that many Malaysians across faiths feel about the passage of this bill that divides the country.

High costs of Umno primacy and insecurity

The political effects of unanimous support for the Kelantan hudud bill goes beyond Umno. It was not just Pakatan that was betrayed by its coalition partners, the same happened to the parties within the BN. Umno has been adopting a primacy for some time, which has deepened post-GE13.  

Gerakan, MIC, MCA and other component parties in East Malaysia will all have to come to terms with this act of Umno and conservative PAS ulama political partnership. They have to come to terms with the fact that they are also allied with a party that supported hudud.

The Kelantan hudud bill will have ripple effects from the cabinet to the Sarawak elections. The pressures inside the BN component parties is there, and they face the same problem as Pakatan partners do over the hudud issue. The glue that keeps Barisan together is power and money, but there has been a similar sense of betrayal at play.

As discussion of the bill evolves, expect pressure within the BN to rise, with Najib becoming the target of these frustrations. He failed to protect the component parties within the BN. A key test ahead will be how the component parties manage in the shadow of Umno dominance.

Where that pressure will be most felt will be is in East Malaysia. Umno will now have to face the music in Sabah, and the vote yesterday will assure that in the short term Umno is not entering Sarawak. But, it is hard for East Malaysians to distance themselves from the action of their fellow party members in Kelantan, as they are of the same party.

They politics of containment have already begun in East Malaysia and they are coming on less reception ground. Since before 2013 there has been a powerful wave of federalism taking root in East Malaysia and this will likely deepen.

Another key test ahead will be the how Umno can convince its East Malaysian partners to work with them, when this Umno ‘vote of conscience’ showed a lack of consciousness of genuine national leadership of all of Malaysia’s citizens.

Pakatan separation inevitable, not irrevocable

The main immediate focus however is understandably the opposition, the coalition and individual parties. It was PAS conservative ulama intention to break up Pakatan, but they and their hudud partnership with Umno is not exclusively responsible for the opposition coalition’s strains.

As I have written elsewhere, the causes of Pakatan’s problems cannot be boiled down exclusively to hudud or to PAS, there must be some shared responsibility. The Kajang move, differences in style and the reality of catering to different constituencies have made for a problematic marriage.
The Kelantan hudud bill will now force the opposition partners to come to terms with the issues that have divided them. This is never easy. Addressing Kelantan hudud will be the Pakatan’s greatest test.
On all sides questions are being asked. How do you work with a partner you no longer trust, a partner who you see as selfish, a partner who is unable to fulfill responsibilities and a partner who thinks and claims to represents a core group of views that are so different from your own? Most would say you don’t. Others would say you have to try.

As with every problematic relationship, there is a need for distance and reflection. Statesman leadership requires that a difficult decision be carefully considered. How Pakatan will solve this problem will reveal how it will govern, and unlike Umno it does not have the same resources and bounty of position to woo support and keep the coalition together.

The strategic response to the hudud issue divides all the Pakatan parties. The Kelantan PKR representative’s vote and Selangor Menteri Besar Azmin’s Ali’s own alliance with PAS ulama point to some of these ambiguities.

Pakatan will face even more public pressure than the BN component partners. The decision will have spillovers for governance in Penang and Selangor. While both of these governments can survive without PAS, there will be political implications for exclusion.

Pakatan partners will likely need to enter a long cooling off period for assessment and review. Urgings for freezes have already begun. This distance will allow the path ahead to emerge.

After the PAS election this June, it will be clearer whether the PAS members will vote for a leadership that has opted for personal power and undermined the party’s option at national power or will allow for the possibility of collaboration.  

As the opposition moves forward, PAS will need to show that it has something to offer politically besides its focus on hudud and reaffirm its commitment to Pakatan emphatically in its party polls.

The other Pakatan component parties will also have to find common ground, work toward respecting the choices of others, move away difference, and strive to build a stronger fabric of leadership for Malaysia. Pakatan will now have to engage in its own politics of containment and national consciousness.

There are limited reasons for optimism, but the possibilities of learning on all sides offers promise and a path ahead.

Part I: PAS’s hudud folly - a political putsch

Part II: PAS’s hudud folly - it’s not chosen by all

BRIDGET WELSH is a Senior Research Associate at the Center for East Asia Democratic Studies of National Taiwan University and can be reached at