Pentadbiran undang undang di negara ini bukan hanya setakat undang undang jenayah dan sivil tapi meliputi juga undang undang Islam yang dipraktik dan digunapakai di mahkamah syariah seluruh negara.YDPA dan Raja raja Melayu mempunyai kuasa dan budibicara yang luas terhadap pentadbiran undang undang Islam ini. Seorang Peguam Negara bukan Islam yang sudah dikenali dengan pandangan pandangan yang tidak secocok dengan kuasa Raja raja Melayu dan sering bergiat aktif dalam usaha memandulkan Islam di negara ini,bukan sahaja calon yang tidak sesuai malah boleh memprejudiskan kedudukan dan kesucian undang undang Islam.Full stop!
The Malaysian Bar
MLC: Malaysia is not an Islamic State, says Tommy Thomas Friday, 18 November 2005 11:00PM
Contributed by Loo Lai Mee, LexisNexisKUALA LUMPUR, Fri: Lawyer Tommy Thomas today told a packed hall at the Malaysian Law Conference that history shows that Malaysia is a secular state.Tommy’s paper on ‘Is Malaysia an Islamic State?’ traces the historical birth of the Constitution from pre-Merdeka days to its current position. From various documents, he showed evidence that the intention and will of both the drafters and people in constituting Malaya was to create an independent and secular nation that will protect and defend the rights of all citizens.
The constitution, he said, was a ‘give and take compromise’ which became the ‘social contract’ between the races. He said that the constitution "reflected a microcosm of the conflicting interests inherent in Malaya’s plural society ... it also mirrored the social and political conditions of the time and the desire of the Alliance leaders for national unity and political stability as nationhood loomed". Tommy added that in the run-up to Merdeka and adoption of the Merdeka constitution, both the leaders and the people were first and foremost committed to achieve consensus and compromises, particularly on communal issues. Everyone concerned from the British, the Alliance Party, the Malay Rulers and the majority of the Reid Commission and in particular, our Bapa Kemerdekaan Tunku Abdul Rahman, first as a Chief Minister and then independent Malaya’s first Prime Minister, took great pains to expressly declare that Malaya is a secular state.
Interpretation of the constitution"No one had suggested in the period leading up to 31 August 1957 that the expression “Islam is the religion of the Federation” in article 3 of the Federal Constitution means that Islam is the State religion", said Tommy. All the commentators who have studied the issue, most of whom are Malaysia’s leading constitutional scholars and/or Islamic law experts such as Prof LA Sheridan, MB Hooker and Prof Ahmad Ibrahim, to name a few, are unanimous of the opinion that ‘article 3 has a limited meaning and scope, and it certainly does not constitute Malaysia an Islamic state.
As a matter of fact, Tommy said prior to the formation of Malaysia on 16 September 1963, the States of Sabah, Sarawak and Singapore were adamant that Islam was not going to be the State religion of the new Federation. This issue has been correctly stated by the then Supreme Court, in a 5-member panel, in the landmark case of Che Omar bin Che Soh v PP [1988] 2 MLJ 55 that article 3 has a limited meaning that the Founding Fathers had intended, expressly stating that Malaysia is a secular nation.
Dr Mahathir’s 29 September 2001 statementTherefore, he said that the then Prime Minister Dr Mahathir’s statement on 29 September 2001 during his Opening Address to the Gerakan Party’s 30th national delegates conference that Malaysia is an Islamic country was not accurate. His best guess was that it was ‘made purely for political considerations, divorced from the constitutional position’. Fortunately, the results of the 2004 General Elections suggest that the electorate was hardly concerned about the issue seeming to content in accepting Prime Minister Abdullah Badawi’s concept of Islam Hadhari, which does not mention that Malaysia is an Islamic state.
Tommy expressed the hope that "having regard to the delicate and sensitive nature of this issue in plural Malaysia ... [the issue] will not be resurrected, that the social contract agreed to in 1957 and reaffirmed in 1963 would continue to operate for generations to come, and Dr Mahathir’s 2001 statement be consigned to historical oblivion.
Constitutional Interpretation in a Globalised World
In another interesting paper, Prof Dr Shah Saleem Faruqi said that the Malaysian judiciary as a moral and not merely a legal, institution should not avoid or evade sensitive constitutional issues when asked to question central government’s powers. He said that Malaysian courts, as in many other countries, ‘speak boldly but act timidly’. He explained that such an approach needs to change in an age when human rights have been globalised, when "injustice anywhere is regarded as a threat to justice everywhere."
He said that "a pragmatic rather than dogmatic approach to the interpretation of the basic charter’s provisions should be adopted. "Judges should be receptive to the felt necessities of the times and their interpretations should show suppleness of adaptation to changing needs. They should adjust legal principles to changing social conditions and should assist in social engineering as in other countries," said Faruqi.Judicial attitudes must change
Judicial attitudes over the past 48 years have not been entirely consistent. Nevertheless, some cautious generalisations can be made.
1. Constitutional supremacy merely notional – Faruqi said: "Over the last 48 years, Malaysian courts have shown extreme reluctance to invalidate parliamentary legislation on the ground of constitutionality. The judges seem to be steeped in the British tradition of parliamentary supremacy which has no legal basis here."2. Reliance on English philosophy of legal positivism.3. Reliance on separation of powers to refuse judicial review – Faruqi submitted that the motive force of the Malaysian Constitution has been wrongly interpreted to mean strict separation of, instead of in a balance amongst the various organs of State. Power of one organ was meant to check the power of another.4. Gradations amongst human rights.5. Preference for English precedents over precedents from US and India - American and Indian precedents, which should be more persuasive because of similar supreme constitutions, are brushed aside as too idealistic.6. Unreviewable
discretionary powers – which has caused the ideals of the rule of law to be set aside.7. Constitutional issues reduced to http://www.malaysianbar.org.myPowered by Joomla! Generated: 2 June, 2018, 21:01
MLC: Malaysia is not an Islamic State, says Tommy Thomas Friday, 18 November 2005 11:00PM
Contributed by Loo Lai Mee, LexisNexisKUALA LUMPUR, Fri: Lawyer Tommy Thomas today told a packed hall at the Malaysian Law Conference that history shows that Malaysia is a secular state.Tommy’s paper on ‘Is Malaysia an Islamic State?’ traces the historical birth of the Constitution from pre-Merdeka days to its current position. From various documents, he showed evidence that the intention and will of both the drafters and people in constituting Malaya was to create an independent and secular nation that will protect and defend the rights of all citizens.
The constitution, he said, was a ‘give and take compromise’ which became the ‘social contract’ between the races. He said that the constitution "reflected a microcosm of the conflicting interests inherent in Malaya’s plural society ... it also mirrored the social and political conditions of the time and the desire of the Alliance leaders for national unity and political stability as nationhood loomed". Tommy added that in the run-up to Merdeka and adoption of the Merdeka constitution, both the leaders and the people were first and foremost committed to achieve consensus and compromises, particularly on communal issues. Everyone concerned from the British, the Alliance Party, the Malay Rulers and the majority of the Reid Commission and in particular, our Bapa Kemerdekaan Tunku Abdul Rahman, first as a Chief Minister and then independent Malaya’s first Prime Minister, took great pains to expressly declare that Malaya is a secular state.
Interpretation of the constitution"No one had suggested in the period leading up to 31 August 1957 that the expression “Islam is the religion of the Federation” in article 3 of the Federal Constitution means that Islam is the State religion", said Tommy. All the commentators who have studied the issue, most of whom are Malaysia’s leading constitutional scholars and/or Islamic law experts such as Prof LA Sheridan, MB Hooker and Prof Ahmad Ibrahim, to name a few, are unanimous of the opinion that ‘article 3 has a limited meaning and scope, and it certainly does not constitute Malaysia an Islamic state.
As a matter of fact, Tommy said prior to the formation of Malaysia on 16 September 1963, the States of Sabah, Sarawak and Singapore were adamant that Islam was not going to be the State religion of the new Federation. This issue has been correctly stated by the then Supreme Court, in a 5-member panel, in the landmark case of Che Omar bin Che Soh v PP [1988] 2 MLJ 55 that article 3 has a limited meaning that the Founding Fathers had intended, expressly stating that Malaysia is a secular nation.
Dr Mahathir’s 29 September 2001 statementTherefore, he said that the then Prime Minister Dr Mahathir’s statement on 29 September 2001 during his Opening Address to the Gerakan Party’s 30th national delegates conference that Malaysia is an Islamic country was not accurate. His best guess was that it was ‘made purely for political considerations, divorced from the constitutional position’. Fortunately, the results of the 2004 General Elections suggest that the electorate was hardly concerned about the issue seeming to content in accepting Prime Minister Abdullah Badawi’s concept of Islam Hadhari, which does not mention that Malaysia is an Islamic state.
Tommy expressed the hope that "having regard to the delicate and sensitive nature of this issue in plural Malaysia ... [the issue] will not be resurrected, that the social contract agreed to in 1957 and reaffirmed in 1963 would continue to operate for generations to come, and Dr Mahathir’s 2001 statement be consigned to historical oblivion.
Constitutional Interpretation in a Globalised World
In another interesting paper, Prof Dr Shah Saleem Faruqi said that the Malaysian judiciary as a moral and not merely a legal, institution should not avoid or evade sensitive constitutional issues when asked to question central government’s powers. He said that Malaysian courts, as in many other countries, ‘speak boldly but act timidly’. He explained that such an approach needs to change in an age when human rights have been globalised, when "injustice anywhere is regarded as a threat to justice everywhere."
He said that "a pragmatic rather than dogmatic approach to the interpretation of the basic charter’s provisions should be adopted. "Judges should be receptive to the felt necessities of the times and their interpretations should show suppleness of adaptation to changing needs. They should adjust legal principles to changing social conditions and should assist in social engineering as in other countries," said Faruqi.Judicial attitudes must change
Judicial attitudes over the past 48 years have not been entirely consistent. Nevertheless, some cautious generalisations can be made.
1. Constitutional supremacy merely notional – Faruqi said: "Over the last 48 years, Malaysian courts have shown extreme reluctance to invalidate parliamentary legislation on the ground of constitutionality. The judges seem to be steeped in the British tradition of parliamentary supremacy which has no legal basis here."2. Reliance on English philosophy of legal positivism.3. Reliance on separation of powers to refuse judicial review – Faruqi submitted that the motive force of the Malaysian Constitution has been wrongly interpreted to mean strict separation of, instead of in a balance amongst the various organs of State. Power of one organ was meant to check the power of another.4. Gradations amongst human rights.5. Preference for English precedents over precedents from US and India - American and Indian precedents, which should be more persuasive because of similar supreme constitutions, are brushed aside as too idealistic.6. Unreviewable
discretionary powers – which has caused the ideals of the rule of law to be set aside.7. Constitutional issues reduced to http://www.malaysianbar.org.myPowered by Joomla! Generated: 2 June, 2018, 21:01
The Malaysian Bar
issues of administrative law – It is unfortunate as sometimes the highest court chose to dismiss constitutional issues summarily and went on to decide the case on the principle of ultra vires in administrative law instead.8. Treating the Constitution as sui generic - Malaysian judges are generally reluctant to view the constitutional jurisprudence and the exhilarating developments in constitutional law in countries like India, USA and Australia. They hold that every Constitution is sui generic – a class by itself. It must be interpreted within its own four walls and according to the nation’s prevailing conditions.9. Public law private law dichotomy.10.Locus standi11. International law – the enforceability of international law on human rights poses problems for our courts because in Article 160(2) of the Constitution the definition of ‘law’ does not make any reference to international law. However this flaw in the law can be remedied by creative interpretation of Article 160(2). The Article states that “law” includes written law, the common law and any custom or usage having the force of law. The word ‘includes’ implies that the definition is inclusive, not exclusive. There is scope for including other elements like international treaties into our concept of law.12. Restrictive interpretation of the right to personal liberty - Through judicial interpretation of the constitutional provision, the courts can expand the horizons of freedom or narrow them down further.13. Article 7 - the rule against double jeopardy has been subjected to so many exceptions that one is left wondering about the real worth of this immunity.14. Article 8 – the unsatisfactory application of this article has caused the guarantees of Part II amenable to restriction, not only by Parliament, but also by the executive acting under legislative powers delegated to it during an emergency by Parliament.15. Special powers legislation - What is lacking is a judicial willingness to apply objective tests to subjective and wide powers granted by statutory formulae in such legislation as the Internal Security Act. The area of non-justiciable executive powers and discretions remains rather large and is showing no signs of abating.16. Islam - On issues which have any direct or indirect connection with Islam, the federal courts use Article 121(1A) as an excuse to refuse jurisdiction. This is so even though in many of the cases that have ended up in the superior courts, fundamental rights and the constitutional validity of legislation are involved. Specifically, many apostates and those declared to be deviants have cried out for constitutional protection. A great deal of legislation by State Assemblies on ‘Islamic matters’ appears violative of federal-state division of powers. But the courts remain silent.
Winds of change
Fortunately, in some areas winds of change are blowing. It appears that the Constitution is moving from the peripheries to the centre. The successful habeas corpus application in Abdul Ghani Haroon and Gobalakrishnan v Ketua Polis Negara (2001) and Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, said Faruqi, have aroused hope that the courts are willing once again, as they were for a short period of judicial renaissance in the mid eighties, to put the supreme Constitution on the high pedestal on which it was placed when Malaya began its tryst with destiny. Whether the Constitution will, in the years ahead, become the sail and anchor, the chart and compass of the nation remains to be seen.
http://www.malaysianbar.org.my Powered by Joomla! Generated: 2 June, 2018, 21:01
issues of administrative law – It is unfortunate as sometimes the highest court chose to dismiss constitutional issues summarily and went on to decide the case on the principle of ultra vires in administrative law instead.8. Treating the Constitution as sui generic - Malaysian judges are generally reluctant to view the constitutional jurisprudence and the exhilarating developments in constitutional law in countries like India, USA and Australia. They hold that every Constitution is sui generic – a class by itself. It must be interpreted within its own four walls and according to the nation’s prevailing conditions.9. Public law private law dichotomy.10.Locus standi11. International law – the enforceability of international law on human rights poses problems for our courts because in Article 160(2) of the Constitution the definition of ‘law’ does not make any reference to international law. However this flaw in the law can be remedied by creative interpretation of Article 160(2). The Article states that “law” includes written law, the common law and any custom or usage having the force of law. The word ‘includes’ implies that the definition is inclusive, not exclusive. There is scope for including other elements like international treaties into our concept of law.12. Restrictive interpretation of the right to personal liberty - Through judicial interpretation of the constitutional provision, the courts can expand the horizons of freedom or narrow them down further.13. Article 7 - the rule against double jeopardy has been subjected to so many exceptions that one is left wondering about the real worth of this immunity.14. Article 8 – the unsatisfactory application of this article has caused the guarantees of Part II amenable to restriction, not only by Parliament, but also by the executive acting under legislative powers delegated to it during an emergency by Parliament.15. Special powers legislation - What is lacking is a judicial willingness to apply objective tests to subjective and wide powers granted by statutory formulae in such legislation as the Internal Security Act. The area of non-justiciable executive powers and discretions remains rather large and is showing no signs of abating.16. Islam - On issues which have any direct or indirect connection with Islam, the federal courts use Article 121(1A) as an excuse to refuse jurisdiction. This is so even though in many of the cases that have ended up in the superior courts, fundamental rights and the constitutional validity of legislation are involved. Specifically, many apostates and those declared to be deviants have cried out for constitutional protection. A great deal of legislation by State Assemblies on ‘Islamic matters’ appears violative of federal-state division of powers. But the courts remain silent.
Winds of change
Fortunately, in some areas winds of change are blowing. It appears that the Constitution is moving from the peripheries to the centre. The successful habeas corpus application in Abdul Ghani Haroon and Gobalakrishnan v Ketua Polis Negara (2001) and Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261, said Faruqi, have aroused hope that the courts are willing once again, as they were for a short period of judicial renaissance in the mid eighties, to put the supreme Constitution on the high pedestal on which it was placed when Malaya began its tryst with destiny. Whether the Constitution will, in the years ahead, become the sail and anchor, the chart and compass of the nation remains to be seen.
http://www.malaysianbar.org.my Powered by Joomla! Generated: 2 June, 2018, 21:01
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