PROHAM’s response to the Home Minister’s comments on 15 August 2017

PROHAM is appalled at the position of the Home Minister Datuk Seri Ahmad Zahid Hamidi who while launching his book on the Prevention of Crime Act (POCA) 1959 on 15 August 2017 criticised human rights defenders accusing them of defending criminals. 

The Home Minister reportedly alleged that critics of the law often masquerade as human rights defenders. Apparently he had said, “They claim to defend human rights, but in court, they defend criminals accused by the authorities.”

It is a principle of natural justice that everyone has the right to a trial and to be heard in court. Article 10 of the UDHR states "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” 

Furthermore the presumption of innocence until proven guilty is an important element of our criminal justice system. For the Home Minister to ignore this basic right and malign human rights defenders and presumably lawyers who take up cases to defend detainees is to willfully dismiss Article 11 of the UDHR which states "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”

If the genuine concern is to eliminate serious crimes including organised crime PROHAM believes we have a battery of existing laws to do just that. We want to take this opportunity to refer to the report by the Royal Commission on the Malaysian Police, which has a dedicated chapter to combating crime. The “ Enhancing Investigative Policing” chapter has 26 recommendations to improve police investigations without having to resort to detention without trial. 

PROHAM strongly opposes detention without trial. 

In 2014, the Prevention of Crime Act 1959 (“POCA”) was amended and expanded to reintroduce detention without trial and the recent amendments, the Prevention of Crime (Amendment) Act 2017 (POCAA), further slice off the rights of a detainee. The latest amendments takes away the right to appear before an Inquiry Officer and the Prevention of Crime Board (POCB) so as to respond to the allegations made against the detainee. The detainee is now deprived of a fundamental right to be heard nor have a lawyer make representations before the Inquiry Officer or the POCB. 

PROHAM urges the government of Malaysia to study the Report of the Royal Commission on the Malaysian Police, which states “Preventive laws are undesirable because they deny the individual his personal liberty without a right to trial in an open court as provided for in Article 5 of the Federal Constitution and international Bill of Rights. This right is the most precious that the individual has and it must be safeguarded.” 

Released by:
Datuk Kuthubul Zaman, Chairman & Ivy Josiah, Secretary General
Society for the Promotion of Human Rights
Persatuan Promosi Hak Asasi Manusia (PROHAM)

CONDEMN AND REJECT POLITICAL VIOLENCE

It was reported that several youths lit flares, threw chairs and shoes at the former Prime Minister, Dr. Mahathir Mohamad at the “Nothing to Hide 2.0” forum in Shah Alam on 13 August 2017.

Such despicable behaviour is fast becoming a growing trend in the Malaysian public space with threats of violence or actual violent actions towards politicians, activists and ordinary Malaysians who expressed their opinions concerning the state of Malaysian society and politics. These heinous acts of political gangsterism are aimed at intimidating the democratic contestation of ideas and silencing dissenting opinions.

This trend is worrying particularly with the looming General Elections. Such unruly and criminal behaviour, if left unchecked will inevitably escalate to outbreaks of political violence during the campaigning period.

The Civil Society Organisations listed below:

1.    call upon all peace loving Malaysians irrespective of political views to condemn and reject all forms of political violence as well as any individual and organisation that try to directly or indirectly justify violence or protect the assailants;

2.    urge all political parties to strongly remind their supporters that violence will not be tolerated and to take all precautions to ensure the safety of participants at their public rallies;

3.   implore all sides to utilise the channel of engagement and civil discourse to solve problems rather than resort to violence and uncivilised means.

4.    strongly urge the police to immediately investigate and promptly apprehend the masterminds and perpetrators of this ruthless subversion of our democracy who must be swiftly prosecuted and convicted to show there is no impunity for political violence in Malaysia.

For enquiries, please contact statement coordinator, Gabungan Bertindak Malaysia (GBM) at 03 2272 3594 or 017 3985 606 or infogpoam@gmail.com)

Endorsed by the following Civil Society Organisations:

1.      All Women’s Action Society (AWAM)

2.      Angkatan Warga Aman Malaysia (WargaAMAN) 

3.      Association of Women Lawyers Malaysia (AWL) 

4.      Baramkini

5.      Community Development Centre (CDC)

6.      ENGAGE

7.      Federation Of Malaysian Indian Organisation (PRIMA) 

8.      Greenfriends Sabah (GF-Sabah) 

9.      G25

10.  Institute For Development Of Alternative Living (IDEAL)

11.  Jaringan Orang Asal SeMalaysia (JOAS) 

12.  Jaringan Rakyat Tertinda (JERIT) 

13.  JIHAD for JUSTICE

14.  Kuen Cheng Alumni Association (KCAA) 

15.  Kumpulan Aktivis Mahasiswa Independen (KAMI)

16.  Kuala Lumpur Chinese Assembly Hall (KLSCAH) 

17.  LLG Cultural Development Centre (LLG) 

18.  Malaysian Indians Progressive Association (MIPAS) 

19.  Malaysian Indians Transformation Action Team (MITRA) 

20.  Malaysian Physicians for Social Responsibility (MPSR) 

21.  Malaysian Youth Care Association (PRIHATIN) 

22.  Merdeka University Berhad (MUB) 

23.  Muslim Professionals Forum (MPF) 

24.  National Human Rights Society (HAKAM)

25.  National Indian Rights Action Team (NIAT) 

26.  Negeri Sembilan Chinese Assembly Hall (NSCAH) 

27.  ONE RACE-HUMAN RACE

28.  Oriental Hearts and Mind Study Institute (OHMSI) 

29.  Persatuan Aliran Kesedaran Negara (Aliran) 

30.  Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS) 

31.  Persatuan Promosi Hak Asasi Manusia (PROHAM) 

32.  Persatuan Rapat Malaysia (RAPAT) 

33.  Pertubuhan IKRAM Malaysia (IKRAM) 

34.  Plantation Resource Centre (PRC) 

35.  Projek Dialog (PD) 

36.  Pusat KOMAS  

37.  Sabah Women's Action (SAWO)

38.  Save Rivers 

39.  Saya Bangsa Malaysia (SABM) 

40.  Sisters in Islam (SIS)

41.  Suara Rakyat Malaysia  (SUARAM)

42.  Tamil Foundation (TF) 

43.  TENAGANITA

44.  Tindak Malaysia (TM)  

45.  WE ARE MALAYSIANS

46.  Women's Aid Organisation (WAO) 

47.  Women's Centre for Change, Penang (WCC) 

48.  Women Development Organisation of Malaysia PJ Branch

49.  Writer Alliance for Media Independence (WAMI) 

Constitutional view on Bin Abdullah case

By  SHAD SALEEM FARUQI

File pix: Prof Faruqi with Proham Chair & members at a Proham event a few years ago

Islam is like a mansion with many rooms, and diversity abounds in Islamic jurisprudence.

COURT of Appeal judges Datuk Abdul Rahman Sebli, Datuk Tengku Maimun Tuan Mat and Puan Sri Zaleha Yusof must be congratulated for their courageous and principled decision in the “Bin Abdullah” case.

Their verdict is based on sound principles of administrative law and has far-reaching, positive implications for our constitutional system.

The issue, in this case, was whether an illegitimate Muslim child can carry the name of his father.

The child was conceived out of wedlock but the parents had married. The child was born a few days short of six months after marriage.

The relevant law on the point is the Births and Deaths Registration Act 1957, a federal law, which provides as follows:

> Under Section 13, the name of the person acknowledging himself to be the father of the illegitimate child is to be entered in the register as the child’s father provided the mother agrees to it.

> Section 13A(1) provides that “where the person acknowledging himself to be the father of the child in accordance with Section 13 requests so, the surname may be the surname of that person”. 

> Section 13 explicitly bars any other names or surnames except at the joint request of the mother and the person acknowledging himself to be the father.

> The surname “Abdullah” is not mentioned anywhere in the Act.

> The Act makes no distinction (as many laws like the Wills Act do) between a Muslim and a non-Muslim and nowhere does the Act says that it does not apply to Muslims.

According to the court, the statutory law was crystal clear that with the consent of the mother, the father acknowledging responsibility was entitled to have his illegitimate child carry his name.

The complication was that a 1981 and 2003 National Fatwa Council advisory opinion states that an illegitimate Muslim child cannot carry his father’s name but must carry the surname “bin Abdullah”.

Accordingly, the National Registration Department (NRD) felt that it has a higher obligation to apply the Fatwa Council’s advisory opinion over and above the statutory law.

The court found this to be illegal.

Despite the adverse court ruling the NRD is standing its ground and is publicly defying the court.

The unfortunate behaviour of the NRD raises a number of constitutional law issues of critical importance to this nation.

Among them are: the relationship between Islamic law and enacted law, the federal-state division of powers especially on the issue of Islam, the subordination or superiority of our elected parliament to Syariah authorities, and the status of a fatwa as a source of law.

Islam as a source of law: Islam has indeed been given an exalted position as the religion of the Federation. Islamic law applies compulsorily to all Muslims but only in 24 areas specified in Schedule 9, List II, Para 1.

Syariah courts exist but have jurisdiction only over the 24 specified topics. In all other areas like contracts, torts, banking, insurance, commercial transactions and almost all crimes, civil law and not syariah regulates the life of the nation.

National registration is a federal, civil matter in List I, Para 3(e) and the court ruled rightly that rules of syariah are not applicable, unless the 1957 federal law specifically says so, which it does not.

Legitimacy, guardianship and inheritance, on the other hand, are clearly syariah matters and whatever name the child carries, the principles of syariah will be applicable to these situations when the time comes.

Choice of one surname or another will not exclude the syariah as the National Fatwa Council and the NRD seem to fear.

Power over Islam: Each state has independent jurisdiction over the 24 assigned areas of Islam. The National Fatwa Council has no right to trespass on the powers of the State Sultan or to dictate Islamic laws to any state.

In this case, the family concerned is from Johor and because the national fatwa was not adopted by Johor and not duly gazetted, it has no applicability to the state

Status of a fatwa: Fatwas by the various state religious authorities have the status of subsidiary legislation because they are authorised by an enabling, parent law. Being subsidiary legislation, fatwas cannot override primary legislation. In this case the NRD was allowing a federal fatwa to override Section 13A(2) of a federal law.

Belief in supremacy of syariah: It is an exaggeration to argue that all matters concerning Muslims are regulated by the syariah.

Only 24 areas are subject to Islamic law. Thus, if a Muslim murders another Muslim, even if the victim’s family is agreeable in accordance with Islamic jurisprudence to receive blood-money in lieu of punishment, Islamic law cannot displace the Penal Code.

Islam and illegitimate children: Those who do not care about the constitutional perspective but only the Islamic perspective should be reminded that Islam is a mansion with many rooms. Diversity abounds in Islamic jurisprudence.

For example, Perlis allows illegitimate children to carry their fathers’ name. The National Fatwa Council, on the other hand, takes a rigid stand against the child.

The Holy Quran in innumerable passages reminds us that no soul bears the burden of another and no one pays for another’s sins: Surah 35:18, 17:13-15; 39:7. Muslims must, therefore, reflect whether Allah intends to punish in this life and in the hereafter the sons and daughters for misdeeds committed by their parents.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.

Read more at http://www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2017/08/03/constitutional-view-on-bin-abdullah-case-islam-is-like-a-mansion-with-many-rooms-and-diversity-aboun/#BDfyKdOsTPqqgf3V.99