英外交部与驻马最高专员曾在1月21日分别致函谭蓉代表律师与工委会，针对要求设立公共调查委员会、道歉及赔偿的请愿，做出拒绝的决定，即英外交部以前两次调查显示没有足够的证据采取刑事提控为由，在缺乏新证据的情况下，英政府不会重新翻案。
在4月1日，谭蓉代表律师向英外交部与国防部发出的司法行动预告书，控状重点如下：
1.英政府决定不进行听证会，调查和补偿的理由是非法及不理智的
2009年1月21日的官方信件中透露了两个不进行调查的主要原因是，
第一、“前两次的调查显示没有足够的起诉证据”
第二、“这次也没有呈上任何新的证据”
我们不认为以上论点在法律上能构成足够理由，同时我们也认为以上论点是非法及不理智的。
首先，进行公众听证会的目的，不仅仅是为了搜集证据及作出控诉的决定。这从英国2005年听证会法令及过去法庭的判例中可略见一二。在一场听证会中，与普通审讯及案件调查不同的是，除了当事人本身之外，其他受案件影响的社群和受害者的亲属，都能够积极地参与听证会。因此官方在作出是否进行听证会之前，绝对有必要咨询此案受害人的家属。此案的家属们从来没有从律政处和警方获得任何有关调查的报告和结果。
即使有关当局已针对此案作出无懈可击的调查以及对家属们作出报告，但是由于此案乃全国和国际社会高度关注的事件，因此国家和公众仍需通过听证会来进一步了解此案。官方的决定完全忽略了这方面的考量。
我们接受之前的调查是重要的，因为之前的调查曝露了更多的案件疑点。如，警方决定前去马来西亚进行实地调查和咨询主要涉案人物后，却突然被指示停止调查；总监曾经指出两名警察的供词难以理解，因为其中一名警察嘉化泰益（JAFFAR BIN TAIB）宣称见证了屠杀事件；官方完全没有尝试去调查1948年和1970年两份供词之间的差异，尤其是已经有证据证明1948年的供词有企图掩盖事实的嫌疑。
至于官方解释“没有任何新的证据”，我们认为那是偏离基本法则的理由。身为决策者，政府应该针对此案进行完整的调查，才能作出一个理智的决定。
官方完全没有兴趣去了解有关此案现有人证和物证的情况，也完全不关心是否还有现存的证据仍未被发掘。实际上，我们发现警方有关此案的档案已经遗失了，多年来也没有人（包括国防部的官员）有兴趣重组仅存的档案。我们也发现政府完全没有尝试联络涉案部队的存活者和兰西（Ramsay）上校（指示巡逻部队清洗村庄的长官），更别说联络此案其他的关键证人。
很明显的，假如官方认真地作出正规的调查，以下重要证据是必须被考虑的：-
一．谭蓉的宣誓词；
二．目击证人的供词，如嘉化泰益；
三．此案关键人物的供词；
四．由马来西亚皇家警察于1993年搜集的资料。
官方的答复从一开始即排除收集所有尚存的证据以及使用现代科学鉴证法的可能性，使到村民是否逃跑的提控一直无法得到证实。
即使听证会并不能定下任何人的谋杀罪名，但是至少我们可以通过听证会鉴定部队是否使用过度的暴力来杀害24名村民。
2.官方没有充份考虑其决定对于种族关系的冲击
根据几名涉案士兵的供词，部队袭击受害人并非因为村民们涉及恐怖活动，而是因为村民们的肤色以及工作地点。这一点在1948和1949年间，造成巨大的社会舆论，即使到了现代这舆论的压力仍然存在。英军人涉及射杀以及英政府不愿调查或赔偿的态度只会日益加深外交和种族关系的紧张。当时负责调查此案的殖民地官员，甚至在公函中记录说对村民以公开处决置理是有其价值性的。更糟糕的是，官方文件也可以证明，英最高专署在1970年间多次以偏差性和种族性言论质疑马来西亚证人的个性，真实性与记忆能力，不鼓励搜集马方目击证人的证供。
简单来说，这次听证会的决定，官方并没有考虑到英国1976年种族关系法令第71条文所提及的，“有需要增进不同族群间的良好关系”。
英政府在作出决定前，必须充份地考虑所有改善种族关系的因素。以此案看来，英政府在这方面是忽略了这个义务。
3.官方拒绝理由不充足
官方若决定不设公共调查需要给予足够的理由。若欲仰赖之前的调查则须清楚的列明报告要点、解释之前调查报告有什么是可依赖与凭证足够等。同样的在本案件中，已有充分的证据显示英军使用过度的暴力，因此英政府须给予清晰的解释为什么没有给予任何的赔偿。
英政府于1月21日过于简略的回复简直就是一种藐视。英政府根本没有提到如何赔偿，这是不合法的。
4.普通法要求调查与赔偿，以便落实国际惯例法
在本案件中，当国际惯例法要求全面的调查以及告知有关赔偿的决定时，这将在3个方面影响司法检讨英政府拒绝的决定：
第一：法庭设下的审查裁决对有关决定与理由的标准；
第二：限制本属于决定者的自由裁决权。在本案中，英政府选择不回复公共调查与赔偿的要求是不合法的。
第三：在特殊案件中，当合理的选择是遵守国际惯例法时，法庭的角色是确保该选择得以落实，本案就是如此。英政府应全面的调查以及认真的考虑赔偿。谭蓉等将通过律师寻求一项强制性质的庭令要求赔偿。
因此，谭蓉等要求英外交部与国防部：
1.答应成立公共调查以便裁决峇冬加里惨案的真相与有任何历史教训须吸取；
2.同意调查委员会有权力因英军在1948年12月11日与12日违反人道主义与人权法律而须作出赔偿，或通过公平的方式鉴定赔偿数额；
3.制定以上要求的时间进度表。
义务律师召集人，郭义民律师 与卢律融律师启
2009年4月29日
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2009-05-09
新闻稿:追讨英军屠杀罪行工委会法律诉讼
Press Statement in relation to the UK Government reconsidering the Action Committee’s requests
Press Statement in relation to the UK Government reconsidering the Action Committee’s requests
1. While the Action Committee Condemning the Batang Kali Massacre welcomes the sensible move made by the UK Secretary of State for Foreign and Secretary of State for Defence to withdraw their 21/1/09 refusal and reconsider the surviving families’ requests for setting up a public inquiry, it is cautious about the relevant authorities may intentionally drag all efforts during the restoration of truth to the detriment of the families.
2. Tham Yong, one of the surviving families, has on 1/4/09 through her lawyers, Bindmans LLP, issued letter before claim to the Secretaries of State stating categorically that the refusal on public inquiry and reparation requests are unlawful for the following reasons:-
a. the explanation for not undertaking an inquiry or further investigation is unlawful and irrational;
b. failure to have due regards to the race relations implications of the decisions;
c. the reasons for the decisions are inadequate; and
d. in the circumstances of the present case, an adequate inquiry and reparation are demanded by the common law to give to customary international law.
3. Tham Yong and the remaining surviving families are demanding the following from the Secretaries of State:-
a. agree to constitute a public inquiry with the terms of reference to determine the reasons for the killings at Batang Kali and to identify the lessons that should be learned;
b. include in the inquiry’s remit the power to make recommendations as to redress, or establish an alternative fair mechanism for determining the amount and form of redress for breaches of humanitarian and human right laws that occurred at Batang Kali on 11 and 12 December 1948; and
c. set out provisional timetable for progressing the above and agree to consider representations from Tham Yong and others about it.
4. Secretaries of State’s solicitor requested for an extension to reply until 24/4/09 and agree that Tham Yong may issue claim on or before 8/5/2009.
5. On 24/4/09, Secretaries of State decided to reconsider its decision of not holding a public inquiry or further investigation into this matter and requested for “few months” to make up their mind. This request is not accepted by Tham Yong and the Committee. We are of the view that such a long and uncertain period of determination is either a genuine typo error on the part of the Secretaries of State or they are simply dragging time unnecessary to the detriment of the surviving families.
6. Tham Yong’s lawyer has made clear on 27/4/09 that the reconsideration process must be completed within 6 weeks because most of the materials are exclusively records of the Secretaries of States, which presumably they must have already considered.
7. There is an absolute urgency on this matter as most of the witnesses may not be able to wait for the justice to be restored. For example, one of the eye witnesses, Wong Kum Sooi, who was 11 at time of killings, passed away on last Friday. He was the eldest son of Huang Ren and nephew to Huang De-Feng, both of whom were killed by the British Army on 12 December 1948 at Batang Kali. JUSTICE DELAYED IS NONE OTHER THAN JUSTICE DENIED. In the circumstances, the Committee urges the Secretaries of State involved agreeing to the request of the surviving families for an inquiry and reparation consistent with international humanitarian standards.
8. The Committee wishes to state in no uncertain term that the only lawful decision as a result of the reconsideration exercise by the Secretaries of State is to hold an inquiry and make reparations either immediately or in the light of that inquiry’s findings.
Quek Ngee Meng
Halim Hong & Quek
For and on behalf of
The Action Committee Condemning the Batang Kali Massacre
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2009-05-07
FREE WONG CHIN HUAT
I have not been updating my blog since Chinese New Year. But this is the platform that I can voice up my absolute anger with the recent unwarranted actions taken by the police.
I disagree with and strongly condemn the arrest of Wong Chin Huat and those who supported him during the candlelight vigil. Such arrest, which based upon an ambiguous law of seditions and an unconstitutional police power to clamp down peaceful appeal, is totally unwarranted and irrational.
Ambiguous Sedition Charges
It is alleged that Wong Chin Huat has been violated Section 4(1) of the Sedition Act, 1948, where he has uttered and published words of seditious tendency. Seditious tendency is defined under Section 3 as follow:-
a. bring hatred against Government (means Federal or State) or against any Ruler (means Yang di-Pertuan Agong, Ruler or Governor of any State);
b. excite someone to bring unlawful alteration of the Government or Rulers;
c. bring hatred against the administration of Justice;
d. raise discontent or dissatisfaction amongst the subjects of the King and Rulers or among the inhabitants of Malaysia;
e. promote feeling of ill-will and hostility between different races;
f. question right, status, position, privilege or prerogative protected by Part III (Citizenship), Art. 152 (National Language and learning of other languages), Art. 153 (Reservation of quotas pertaining to services, permit etc for Malay and natives of Sabah and Sarawak), and Art. 181 (Rulers’ sovereignty) of the Federal Constitution.
At time of writing, it is unclear which provision that the police is relying on to charge Wong.
However, it is believed that the arrest is connected with the campaign spearheaded by Wong to question the legality of the new Perak Government. Besides targeting at Prime Minister Najib, it is reported that Wong is striving for a new state election in Perak.
On the face of the reported news, it can be hardly convinced that Wong is liable for sedition charges. In my opinion, he has not said any words which are contravened to any item stipulated under Section 3 above. He is merely questioning the constitutionality of the present State Government and wishes that the people/voters be the ultimate arbiter of this issue. The general public is of the view that only with a fresh State Election, the dispute between political parties will be settled once and for all. In fact, Section 3(2) of the Sedition Act allows for these exceptions.
Bearing in mind that the case of who is the legal MB has yet to decided prior to Wong’s arrest. It is perfectly legal for Wong to defend what he perceived to be his constitutional rights and request the power to decide the MB (via barisan/party which win the most seats in the election) be rested with the rakyat.
Charging Wong under the Sedition Act is a clear act of suppressing expression which is guaranteed by Article 10(1)(a) of the Federal Constitution.
Unconstitutional Police Power
The police have always abused their power purportedly granted under Section 27 of the Police Act, 1967 to arrest peaceful assembly and procession of more than 3 persons. This power is unconstitutional because it runs foul of Article 10(1)(b) of the Federal Constitution, which confers the rights to assembly peaceably and without arms.
Section 27 is in contradiction to Section 141 of the Penal Code as well. The Penal Code disallows participation in a public or private gathering if a gathering of 5 or more persons has the common object to commit criminal conducts, which make sense to any ordinary people. We just can’t figure out correctly why on earth the police need to clamp down peaceful assembly!
The police should concentrate their limited resources in camping down those criminal who violated the Penal Code and do their best endeavour to reduce the crime rate, instead of arresting peaceful assembly under the Police Act. We must strongly censure such abusive power exercise by the police, which will bring darkness to the nation building.
Consistency of Principle
I met Wong in 1999 when I supported the BN during the General Election. We have heated argument but I salute him for his persistency and consistency in holding the principles that he believed. He has impressed me as a lobbyist for the betterment of our nation. He disagrees with BN for abusing the draconian law of ISA. He condemns Anwar who initiated the immoral hopping of wakil rakyat. He promotes local council election, and for that matter, a fairer and more transparent election. Our country needs more rakyat like Wong who, in line with the Federal Constitution, stands firm and fight hard for what he believe in.
I humbly appeal to the Prime Minister, the Minister of Home Affairs and those who believe in safeguarding every provisions of our Constitution, use you power/influence to free WONG CHIN HUAT immediately.
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2009-02-07
Action Committee Condemning Batang Kali Massacre Demanding Public Inquiry
1. Following the petitions submitted by the Action Committee Condemning the Batang Kali Massacre on both 25 March and 12 December 2008, the British High Commissioner, HE Boyd McCleary, being the representative of HM Queen Elizabeth II in Malaysia, has been directed to reply to the petitions on 21 January 2009.
2. The British Government claims that they have carefully considered the petitions and concludes that “in view of the findings of 2 previous investigations that there was insufficient evidence to pursue prosecutions in this case, and in the absence of any new evidence, regrettable we see no reason to reopen or start a fresh investigation.” It is understood that the 2 previous investigation referred to the 1949 and the 1970 investigations.
3. The Action Committee is disappointed and absolutely not convinced with the British Government reply because the latter has not taken into account the inherent unsatisfactory and incomplete nature of the previous 2 investigations. Instead, the British Government has taken into account an irrelevant consideration of pursuing criminal prosecution, which is not intended or demanded by the surviving families of the massacre.
4. There were 4 sworn statements from the soldiers involved confirming that they had misled the 1949 investigation. The soldiers admitted there was an intentional killing and the unarmed civilians were not trying to escape. The sworn statements were not rebutted. As such, the credibility of the 1949 investigation has been put into doubt.
5. As for the 1970 investigation, the then Director of Public Prosecution, who instructed to halt the 1970 investigation prematurely, admitted that there was a substantial conflict of evidence amongst the soldiers involved, and no statement or interview was ever taken from the Malaysian witnesses, such as the survival of the massacre, Chong Foong and his wife Tham Yong. In addition, no process of body exhumation and forensic examination were ever conducted. We submit that the 1970 investigation is incomplete and certainly inconclusive.
6. In view of the above, we can’t help but to conclude that the British Government has failed to read and consider the petitions submitted by the Action Committee carefully and with due weight. They have used the “1970 standard format reply”, which is obviously outdated. We have the statements from the Malaysian eye-witnesses. Further, the remains of the massacre were lying at the cemetery of Ulu Yam, Batang Kali. These are credible evidence for the case which have never been considered by the British authorities.
7. Let’s be very clear. The surviving families are not seeking any criminal trial of the soldiers involved. They are requesting a thorough and an independent investigation via the setting up of a public inquiry so that the historical truth can be discovered. The surviving families, who lost their bread earners for the past 60 years, have been living in a dismal plight. It is only reasonable for them to request an official apology, compensation and construction of a memorial for their love ones from the authority who had committed an atrocity.
8. The surviving families’ lawyer in UK will write a formal letter to the British Government (known as Pre-Action Protocol letter) setting out the reasons that the decision taken by the British Government is unlawful, and inviting them to reconsider their position before we ensue with legal proceeding.
9. Meanwhile, the Action Committee will be seeking a meeting with the Malaysian representative of the Commonwealth Parliamentary Association for purpose of persuading the Malaysian MP to seek redress for the surviving families within the Commonwealth network.
10. We sincerely hope that in the interest of both UK and Malaysian community, the British Government will accede to the request of setting up a public inquiry on the Batang Kali massacre.
Quek Ngee Meng
Coordinator, Voluntary Lawyers
The Action Committee Condemning the Batang Kali Massacre
30 January 2009
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2008-12-14
Malaysia's Last Witness to 1948 Massacre Calls for Justice (AFP法新社)
AFP (法新社)coverage on the Batang Kali Massacre, which was published this morning. Full text as follows:
BATANG KALI, Malaysia (AFP) — Tham Yong is elderly and infirm, but the sole living survivor of Malaysia's 1948 Batang Kali massacre says she still vividly remembers what she calls "the day the British killed our men".
"After so much time, it still hurts me every time I talk about it, I remember it just like yesterday," she says, tears streaming down her cheeks as she recounts the slaying of 24 unarmed villagers by Scots Guards troops.
The 77-year-old former rubber tapper has spent decades fighting for compensation over the terrible events in the village of Batang Kali on December 11 and 12, 1948.
But as she succumbs to throat cancer, the campaign is being taken up by a new generation of activists and politicians who have demanded an apology from Britain and 80 million pounds (149 million dollars) in compensation.
The leader of the campaign, 40-year-old lawyer Quek Ngee Meng -- whose father lives in Batang Kali -- marched with a small band of supporters to the British High Commission on Friday to mark the 60th anniversary of the event.
The group presented a memorandum condemning the massacre to High Commissioner Boyd McCleary, who came out to the embassy gates to meet with the protesters.
"We are asking for a proper public enquiry to be held... I think it's a fair request," Quek told AFP.
"Let us show our evidence and if we have proven our case, then meet our demands. If the outcome favours the British government, then we will stop this protest," he said.
In June 1948, the British authorities declared a state of emergency in the colony then known as Malaya, which was overrun by communist insurgents engaged in a violent and brutal guerrilla war that would last 12 years.
The Chinese community in the multiracial nation were suspected of supporting the communists, as most of the insurgents were ethnic Chinese upset over a lack of rights that saw them endure appalling working conditions.
Many were unhappy that after World War II, in which the Chinese communists put up the only effective resistance in Japanese-occupied Malaya, they were now being offered only limited citizenship in the country they had fought for.
This, in addition to a post-war regional economic slowdown that brought massive unemployment, led many to join the communists in a campaign to oust the British colonial rulers.
To contain the insurrection, the authorities used British troops to carry out anti-guerrilla operations although many were raw recruits as most of the soldiers who had fought in World War II had been demobilised.
Batang Kali, which lies just outside the modern capital Kuala Lumpur, remains much like it was on the day when 14 British soldiers opened fire on unarmed men and torched the village.
Tham Yong still lives there, in a spartan house with cement floors, a single lightbulb and only a few sticks of furniture.
"The soldiers came in the evening as we were preparing our meal," said the elderly lady, who because of surgery for her throat cancer has to press closed a hole in her throat in order to speak.
"They rounded us all up and we were terrified," she said.
"Even though we said we were not communists and we had no weapons, they killed one of the young men in cold blood in front of my eyes because he had a permit to collect durians, written in Chinese."
"I think the British soldiers must have thought it was a communist document," she said.
"The soldiers then told him to run away but he didn't want to, but they pushed him and when he did run, they shot him from the back."
Tham Yong said the soldiers then locked the men, women and children in a small room overnight.
"The next morning they loaded the women and childen in a truck and just after we were out of view we heard many shots and we knew the men were dead," she said.
"We were kept away for a week and when we returned we found the bloated bodies, half eaten by animals with most of them looking as if they were running away when shot. Even today when I think of what happens, it hurts so much."
The shooting was quickly explained away by the local government, with the then Malayan attorney general saying an inquiry had been held and the troops vindicated, although no trace of this investigation has been found.
The guerrilla war left thousands dead and formally ended only in 1989 with the signing of a peace treaty with the Malayan Communist Party.
The massacre lay forgotten until Britain's People newspaper in 1970 published an explosive account of the killings, publishing sworn affidavits by several soldiers involved who admitted the villagers were shot in cold blood.
The soldiers said in the statements -- now on record in British archives -- that the villagers were forced at gun-point to run, and then killed in a bid to make it look like an escape attempt.
Some of the soldiers said they were ordered to kill the villagers as a desire for revenge brewed among senior officers after several communist insurgents killed British and local security personnel weeks before.
The revelations caused major ripples in Britain just ahead of national elections, with then defence secretary Dennis Healy promising a full investigation.
However, plans for the enquiry were dropped after the Conservatives took power.
It was not until 1992, when a BBC documentary reminded Malaysians of the killings, that interest was revived, but demands for an inquiry have failed to make any headway.
Cabinet minister Ong Tee Keat, who is head of the main Chinese component party in Malaysia's coalition government, said recently that the history of the guerrilla war should be accurately portrayed.
"(The Batang Kali killings) have been glossed over by the colonial government administration. This has been kept under the rug for so long," Ong told AFP.
"What these people are seeking really is historical redress as those that were killed have long been described as bandits and Communist sympathisers," he said.
For Tham Yong, the feelings of injustice remain raw.
"I'm still angry because these were innocent persons but labelled as bandits and communists, when all they were doing was collecting durians and not supplying food to the communists," she said.
"My advanced cancer means I will not around much longer, but I hope people remember what happened here so that those who were killed here are never forgotten."
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2008-12-13
Submit Memorandum at British High Comm on Batang Kali Massacre
We have submitted a copy of the Memorandum to the British High Commissioner, HE Mr. Boyd McCleary CVO this morning, 12 December 2008. Mr. James Paver, Head of Political, Economic & Public Diplomacy Section was present as well.
A delegation of about 100 representatives from Malaysian NGOs, political parties, surviving family members and the members of the Action Committee gathered in front of the British High Commission at Kuala Lumpur around 10:45am. The procession was not able to proceed as planned because the police only allowed a small group of not more than 5 persons to walk to the High Commission, with no marching and no banner / placard displaying.
At the High Commission, the police permitted us to complete the ceremony to pay respect to the victim within 10 minutes. Mourning statement was read and bouquets of white chrysanthemums were delivered at the front of the High Commission.
A delegation of 5 persons met with the High Commissioner, namely:-
1. Quek Ngee Meng, Head of Signature Campaign;
2. Mr. Leon Lu, Voluntary lawyer;
3. Mr. Michael Chong, Head of Public Services and Complaints Bureau of Malaysian Chinese Association;
4. Mr. Tian Chua, Member of Parliament, People Justice Party; and
5. Mr. Tan Chai Ho, Central Committee of MCA.
We summarised the contents of the memorandum submitted to HE Queen Elizabeth II. The High Commissioner gave an expected reply that the London FCO office is looking into this matter and he will forward our memorandum to the London office.
On our request to conduct a public inquiry to investigate this matter, the British High Commissioner seemed receptive to this idea. He was for the idea to close this issue once and for all. However, he emphasized that there must be evidence to warrant a public inquiry.
We brought to the High Commissioner attention that the investigation conducted by the British authorities was incomplete. There was no statement taken from the Malaysian eyewitnesses, nor was there any process of body exhumation and subsequent forensic examination. The High Commissioner was keen to read the sworn statements of the sole survivor and the eyewitnesses. We were more than willing to cooperate at appropriate timing and forum.
The meeting lasted for about half an hour.
We also sought help from the political parties, both MCA and People Justice Party. We hope that they can contact their counterparts in UK or via Commonwealth Parliamentary Association (CPA), where a Malaysian MP is the Chairperson, for purpose of reviving public interest over this issue in UK.
Local press was present to cover this event, but it is not easy to attract attention of the international media. BBC, Al-Jazeera and Reuters were not present despite much effort was put to invite them. AFP special write-up on the Batang Kali massacre will publish on this Sunday instead.
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12月12日请愿行动-到英国最高专员署呈交备忘录
当时在马华大厦驻守的警察超过20人，而英国最高专员署前还有联邦储备队。由于警方要求十分严格，每次只允许不超过5个人一起走，并且每组的距离也必须相当远，结果严重拖延了集合时间。因此，原本计划集合所有人才进行仪式的安排被逼临阵改变，而必须先进行仪式，部分参与者才陆续抵达。
在和其他四名代表进入最高专员署呈交备忘录后，就移步到大同皇朝餐馆进行记者招待会及移交备忘录给政党的仪式。
以下为我在仪式上的讲词：
1. We have today, on the 60th Anniversary of the Batang Kali Massacre, submitted a memorandum to Her Majesty Queen Elizabeth II of the United Kingdom. This Memorandum was received by the British High Commissioner.
2. In the Memorandum, the Action Committee Condemning the Batang Kali Massacre urges Her Majesty to assert her vast influence on the UK Government to act honourably. We are demanding a thorough and independent investigation via a public inquiry on the Batang Kali Massacre be conducted as a matter of the utmost urgency.
3. We have compelling evidence to prove that the British army committed a brutal massacre of 24 unarmed civilians at Batang Kali on 11 and 12 December 1948. This evidence includes but not limited to the eye-witnesses statements and the confession of soldiers involved under oath. However, we know that the United Kingdom’s official records state that these 24 unarmed civilian were trying to escape whilst under the soldiers’ custody. These civilians were later alleged as “bandits” and “terrorists”. We strongly and firmly deny the UK Government’s official account.
4. The UK Government’s official conclusion was reached with an absolutely incomplete investigation. There is no statement taken from the Malaysian eye-witnesses and their relatives; nor is there any process of exhumation and forensic examination. As such, while the non-UK official communities are clearly aware of the stubborn fact that the Batang Kali Massacre has indeed taken place, we opine that the most convenience forum to find out the historical truth is to go through a public inquiry under the UK Inquiries Act, 2005.
5. The proposed public inquiry must be empowered to make recommendations to expeditiously address the consequences of the Massacre such as meeting the demands of the surviving families, namely an official apology, financial compensation and construction of a memorial for the victims. This public inquiry ought to be led by senior judge of UK or European Union.
6. Thus far, our experience in dealing with the UK Government often met with silence and passive reply. We must continue to assert influence and pressure from various angles on the UK Government for purpose of addressing this historical wrong.
7. We are lobbying the Malaysian Members of Parliament and Political Parties. They have their network and connection with their counterparts within the Commonwealth countries, in particular the UK MP and Political Parties. We hope to woo the hearts and sympathy of the politicians because it is an integral part of our struggle to rectify the continuing injustice.
8. We must have the continuous and unreserved support from the local and international NGOs, which form the core of a civic society. In any civic society, there is an absolute prohibition of torture and the right not to be arbitrarily deprived of life. The Batang Kali Massacre is a clear violation of this right. We must express our sincere gratitude toward 553 Malaysian NGOs and Societies which have endorsed their full support on the cause of seeking redress for the massacre victims.
9. We need local and international media to help in our struggle. Our voice is lesser in power if compared to the mighty State. The investigative coverage given by the media will create appropriate public pressure on the UK Government to accede to our request.
10. Last but not the least, we must thank the surviving families and their relatives, for their patient for the past 60 years. They have told me that they are prepared to forgive the inhumane act of the soldiers, but they will not forget the brutal killings of their love ones. They are determined to seek a full explanation of the reasons for what occurred along with a meaningful apology and redress for the surviving family members. The Action Committee Condemning the Batang Kali Massacre and its committee members as well as volunteers are with you.
Thank you.
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2008-09-13
It’s time to quit as BN head, Abdullah
On my way back from office last night, I received sms news: “Sin Chew Daily News reporter Tan Hoon Cheng arrested at her home in Bukit Mertajam at 8:30pm”. She was later confirmed to be detained under ISA.
It is widely believed that Tan Hoon Cheng was arrested due to her honest and verbatim reporting of the infamous “Chinese squats (tumpang) in this country” statement uttered by an ultra extremist Ahmad Ismail.
I received many sms later. All cried about foul play and abuse of power of the authority. Members of the public were absolutely shocked and dissatisfied with the arrest of a reporter, who was merely performed her duty diligently and professionally. Any reporter, regardless of race and religion who has been assigned with tasks, will report the statement made by speakers of the event. Using the standard of the excuse given for the arrest, it would only mean that more journalists who carry out their jobs dutifully could be detained under the ISA. Many reporters are living in fear, wary about they may be the next target of ISA. Perhaps, this is the scare tactic used by those who are desperate. Only desperate men will act unreasonably and recklessly, and even resort to the extreme measures.
A leader who is unable to command his/her subordinate is considered as a desperate man. For example, after Ahmad Ismail’s ultra statement was made public, the Prime Minister and the UMNO President Abdullah Badawi did instruct Ahmad Ismail to explain and apologise. However, Abdullah changed his mind and softened his tone later after chairing the Penang UMNO State Liaison meeting—as he witnessed Ahmad, the local UMNO strongman was backed staunchly by the 12 UMNO Divisions. Being the leader of Barisan Nasional, Abdullah has placed his fellow partners within the coalition in a hostile position. In struggling to survive for the remaining 2 years within UMNO, it seems that Abdullah has chosen to sacrifice the interest of Barisan Nasional as a whole.
Despite his later effort to punish Ahmad Ismail by suspending the latter’s membership of UMNO for 3 years, his good deed was buried altogether with the blunder that he made in arresting the innocent reporter.
Tan Hoon Cheng was released today, after MCA President Ong Ka Ting intervened in this matter. The public was relieved. However, image of Barisan Nasional administration has suffered an irreparable damage. Some people told me that nothing could be worst than having Pak Lah to head the administration and they started to consider Pakatan Rakyat as a realistic alternative.
Besides being an indecisive leader, the public simply could not take Abdullah’s words seriously. His word cannot be bonded. Few incidents such as he assured that Parliament would not dissolve in near future but he changed his mind just the next day; his Minister publicly denied an increase in petrol price and the next day he overruled by allowing the highest hike of petrol price. As a Prime Minister, his credibility has been severely tarnished.
After suffering a crushing defeat in the political tsunami of March 8th, I was relieved when Abdullah conceded to a 2-year power transition plan, i.e. by June 2010. He claims that he has many pending jobs to be completed such as reforming the judiciary, setting up the IPCMC and implementing the Economic Corridor projects.
3 months passed after the countdown begins; the ordinary folks have been experiencing the worst inflation and, with no salary increment. Moreover, the public is pessimistic over the economic outlook. Most are living in a very difficult time. The Economic Corridor projects are simply a far-fetched idea that is impossible to relief the immediate hardship suffered by the people.
As a matter of fact, it will be wiser for Abdullah if he choose not to talk about judiciary reform and IPCMC from now on. He has resorted to an evil law ISA to detain an innocent reporter and DAP MP Teresa Kok without putting them into trial. Until now, we are still uncertain as to the supposed guilt of Teresa Kok given that the Masjid and residents have refuted any involvement of Teresa Kok on the issue of azan matter. In fact, Teresa has denied firmly any involvement on azan matter and intended to sue Khir Toyo, the maker of the allegation. Just like many others, I am not convinced on the excuse given to detain Teresa.
Detention without trial under ISA is definitely an insult to the judiciary system. It brushes aside the adjudicate function played by the judiciary, a core mechanism for a democracy country. Being a lawyer and an officer of court, I firmly disagree with the use of such draconian law.
ISA gave absolute power of arrestment and detention to the police. It is a Pandora box which allows the floodgate of power abuse. Even the implementation of the so-called IPCMC, if it could be materialized, would not be able to curtail any police power exercisable under ISA.
After the arrests made on Friday night, I can see no valid reason for Abdullah Badawi to remain as the head of Barisan Nasional and the Prime Minister. His prolong staying as leader of the coalition party will only disintegrate the entire Barisan Nasional. Abdullah should step down with immediate effect. He should be replaced by someone who is more focus, decisive and can lead the government with direction.
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2008-08-24
Upholding The Value of Human Dignity
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On 20th Aug morning, we had a Launching Ceremony of the Signature Campaign Condemning the Batang Kali Massacre held in the Selangor Chinese Assembly Hall. As a Head of the Signature Campaign and one of the volunteer lawyers involved in the legal suit against the British Government, I urge members of public could come forward and give us a strong support by signing the endorsement letter. The month-long nationwide Signature Campaign will end on 20th Sept. All the endorsement letters collected will be sent to Britain, as an evidence that show Malaysians' stance on this case.
Below is the speech I delivered in the Launching Ceremony:
Upholding The Value of Human Dignity
1. We can easily find out the story of the Batang Kali Massacre in bookstore or internet. For example:-
a. In a pictorial history book authored by Lt Col (R) Mohd Azzam Mohd Hanif Ghows entitled “The Malayan Emergency Revisited 1948 – 1960”, we learn about the atrocity committed by the Malayan Communist Party. But at page 55, there is an account of killing committed by British Army in Batang Kali on 12 December 1948. It stated that “suspicions remained about a possible government whitewash. Indeed later, in 1969 (should be 1970), following the international outcry over the My Lai massacre in Vietnam, claims in British newspapers forced a new investigation, but a change in government in Britain led to the enquiry being aborted, despite sworn statements from participants and a lone survivor that a deliberate massacre had taken place.”
b. Similar suspicious can be found in Wikipedia, the website encyclopedia.
Therefore, unless and until the truth is revealed, the Batang Kali Massacre will always haunt the reputation and goodwill of the British Army, if there is any. As Malaysians, we have a duty to find out the truth and seek for justice for those who had sacrrified and suffered during the time of terror.
2. Together with other voluntary lawyers, I went to the National Archives of UK. We discovered the sworn statements of confession made by ex-Scot Guards, the British Army who involved in the Batang Kali Massacre, in 1970. They revealed the following essential evidence:
a. the patrol had prior instruction to wipe out the village;
b. the men were shot without trying to escape; and
c. there was a conspiracy to mislead the inquiry.
Despite the investigation carried out in 1970 revealed contradictory evidences, the Conservative Party Government aborted the investigation barely within 10 days after they have won the general election. We are not convinced with the reasons given by the Tory Government.
3. Aborting an investigation in such a hasty manner would only give rise to more doubt. There is no dispute that the 24 victims were unarmed and they were killed by the British Army. Based on the confession made by the ex-Scots Guards, a massacre had indeed taken place. It is a crime against humanity.
4. Let’s be clear. We are not questioning the legality of the Emergency or the guerilla warfare itself. However, we cannot tolerate any atrocity committed by those who were armed and asserted brutality on the innocent and unarmed civilians.
5. We have no doubt that there were inquiry initiated by the British Government over the Batang Kali massacre, but we strongly believed that certain quarters had an ulterior intention to conceal and cloud the truth, and misled the public including the international community.
6. The families of the massacre victims have no intention to take revenge by seeking criminal punishment on those soldiers involved in the brutal killing. But the families want justice to be done. These include the following:
a. the massacre victims were not bandits or terrorists. They were fellow Malayan residents who have contributed toward the economic wealth of our nation. Their family members want an apology from the UK Government;
b. the families are seeking monetary compensation for loss of their bread winners during the massacre and hardship that the families had suffered after the killing; and
c. a memorial to be built for the massacre victims because their unattended bodies had been remained exposed for more than a week. There is no value of human dignity accorded to the victims.
7. These are the sublime values that the Malaysians and younger generation are striving for. A value that respect human dignity, a value that true and honesty are foundation of a civic and progressive society, and a value that wrongful perpetrator will be held accountable. There is no time limitation restricting these values to flourish, nor is there any standard variation for these values to be upheld in different part of the worlds.
8. The Action Committee Condemning the Batang Kali massacre had submitted a petition to Her Majesty Queen Elizabeth II via the British High Commission on 25 March 2008. There is no response from the UK Government.
9. As such, we need to press on. The Action Committee is mainly made up by the Ulu Yam residents. To the British authority, the Committee may not be strong enough to even warrant a response from the UK Government. In order to intensify the Committee’s effort in seeking justice for massacre victims, the Committee needs support from more Malaysia NGOs and Societies, irrespective of races, religions and background, so long as they subscribe to the values that the Committee is striving for.
10. This is the reason that we are organizing a signature campaign by Malaysian Societies and NGOs to condemn and censure the Batang Kali Massacre. We hope to achieve the following objectives during this signature campaign:
a. uncover the truth and rectify an historical injustice; and
b. enhance a value of upholding human dignity within the Malaysian society.
11. We must give our special thanks to journalists who had relentlessly searching for the truth of this Batang Kali massacre i.e. the “People” Newspaper in 1970 and BBC Documentary “In Cold Blood” in 1992. Local journalists deserved special thanks as well because they have stirred public awareness on this historical injustice within our society so that younger generation can pursue further in seeking justice for the massacre victims.
12. We wish to express our sincere gratitude to the Societies and NGOs who have affixed their signature on the endorsement letters, in support of this signature campaign. We must also thank the ruling and opposition political parties which have provided the necessary backing to this exercise of seeking justice for the massacre victims.
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2008-08-20
一场尊重人权价值的推动
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今天上午举行了《追讨英军罪行·全国社团盖章签名运动》的推介礼。我负责协调这个签名运动，目的是吁请国人支持"追讨英军罪行工委会"为死难者家属向英国政府讨回公道，并通过签名盖章展现国民与民间组织的立场。这是一个由当地社区居民以及许多自愿义务人士与团体发起的运动，并将在9月20日活动截止后把所收集的支持书送到英国。
以下为我在推介礼的演讲摘要：
身为较年轻的一辈，我们欲了解60年前24名乌鲁音村民在峇冬加里被屠杀的惨案并不难。只要通过输入关键词：“峇冬加里屠杀惨案”就可以在书本与网站世界略知这是怎么一回事。
无论是书本、报章与网络的资料，它们都有一个共同点，即质疑英军宣称死者是恶匪或恐怖份子是否属实。在英国与本地媒体充分发挥揭露弊端与历史冤案的努力下，峇冬加里屠杀惨案的真实情节逐渐还原。1970年的英国报章报导、1992年的英国广播电视纪录片、英军亲口承认屠杀惨案的宣誓书、屠杀惨案唯一生还者与目击者的口供，工委会律师团在英国国家档案局所收寻的资料，都显示屠杀惨案确实发生。
英国政府承认英军杀害24名手无寸铁的平民，但英政府唯一合法化屠杀的理由是这24名平民尝试逃跑。但，自1970年起揭发的证据，我们有很强的理由不相信英政府的藉口。我们能证明英军不只有意图的屠杀平民，也刻意误导较后成立的调查委员会，蒙蔽惨案事实的真相。很明显的，英国政府已犯下侵犯人权与生命尊严的罪刑。
《追讨英军罪行工委会》的目标明确：绝不能容忍强权者向手无寸铁的平民实施暴行。我们不否认英国政府曾针对峇冬加里屠杀惨案展开调查，但我们相信有一小撮有权位者刻意掩盖事实的真相，企图误导国际社会。
据我所知，死者家属无意向谋害他们亲人的英国士兵采取报复行动。但死者家属坚决向英国政府讨回公道。这包括：
1. 殉难者不是英国政府所抹黑的恶匪或恐怖份子。他们多是胶工，对我国经济发展做出了贡献。英国政府须向殉难家属道歉。
2. 殉难死者都是家庭经济生活的支撑着，因此，殉难家属要求英国政府赔偿他们失去养家糊口的依靠。
3. 殉难死者在屠杀后被曝尸超过7天，全无人性尊严可言。英国政府应为死者家属设立纪念塔以还殉难死者的尊严。
尊重人权与生命尊严的价值是马来西亚年轻一辈追求的目标。这个价值涵盖尊重生命的可贵、强调公民社会是建构在诚实与真实的基础，以及施暴行者须负上历史与社会责任。这些价值都不会因为时间而流失，也不会在不同国家有着不一样的标准。
《追讨英军罪行工委会》曾在2008年3月25日通过英国大使馆向英女王呈交请愿书，但至今并无任何回应。因此，工委会需要更大与更广的社会资源与网络，共同声讨英军屠杀罪行，让英政府感受到全马社团响应尊重人权的呼吁，以及民间伸张正义的团结力量。
工委会决定举办“全国社团签名盖章运动”，共同谴责英军屠杀罪行，希望引起国际社会的关注，将历史真相还原，纠正历史冤案以及共同塑造一个尊重人权的社会。
我们感谢国内外媒体工作者自1970年起不断的挖掘事实真相，使到峇冬加里屠杀惨案的真相有朝一日能够浮现。除此，我们感谢社团与非政府组织，共襄盛举，盖章签名声讨英军屠杀罪行。我们也感谢朝野政党同意成为工委会为殉难者寻求公道的坚决后盾。
工委会谨此呼吁，全国社团与非政府组织积极响应“全国社团签名盖章运动”。我们将在一个月内赴全国各地，将收集到的请愿书通过英国大使馆呈交给英女王，为这历史冤案平反。
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2008-08-11
60年前的屠杀案，追讨英军罪行
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（上图左起）工委会成员魏春萍及陈观添、目击证人罗亚才、黄金水及我。
谭蓉，78岁，罹患喉癌十余年，健康状况每下愈况。
上周六上午在乌鲁音举行了一场记者招待会。4家中文报的记者加上马新社电视，都到了乌鲁音这个小地方，而记者招待会的地点是一个住家--一个叫做谭蓉，今年78岁的老人家的家。
这个记者招待会是有关于60年前在此地发生的一场屠杀事件。1948年12月12日，英国殖民政府军人在Batang Kali开枪射杀了24名手无寸铁的平民。事后英政府解释为这些遇难者都是共产党。事实上，许多证据与目击者的口供显示，这些无辜失去生命的平民，根本就未曾反抗或是试图逃跑，可是他们却被蓄意的杀害。
谭女士是当时的目击证人，她已经过世的先生则是此惨案的唯一生还者。另外两名出席记者招待会的是罗亚才先生和黄金水先生，他们也是在年少的时候目睹了自己的亲人被杀害。这件事件多年来曾经受过关注，可是并未真正进入法律诉讼程序。
今年初，当地一群热心人士组成了一个“追讨英军罪行工委会”，希望可以通过法律程序替死者家属讨回一个公道，并在3月提成备忘录给英女皇，要求英政府作出赔偿与道歉。可是，之后全无音讯。
我在今年4月加入成为义务律师团成员之一，并在7月初到英国伦敦进行法律诉讼工作的研究与前置作业。与当地律师的研讨后，我们知道这个案件的胜诉机会高，可是所需的法律费用却高达马币100万元以上。其后，我们知道原来这些受难者的家属可以通过英国政府的法律援助基金，以获得经费进行法律诉讼。 这些家属收入不高，有些年龄虽然颇大，但仍然继续工作维持生活。其中，更有如谭蓉女士这样罹患喉癌十多年，并无分文收入之余还要负担医药费，儿女的经济状况相当拮据。
因此，申请英国法律援助基金是最佳的方法。可是，我们也从英国律师那里得知，英国官员认为马来西亚华人经济富裕，因此不应该获得法律援助基金。对于英国官员的这种刻板印象，我觉得是一个严重的偏见，也是具有种族歧视的言论。事实上，这些家属完全符合获得法律援助基金所订下的2大条件，即经济状况无法负荷法律诉讼的费用，以及本案深具胜算。
面对历史真相的是非，作为一名律师，我责无旁贷的协助家属们进行这场法律诉讼。我也希望可以通过国内各社团的关注与集体支持，吁请英国政府正视此事，并让这宗发生了60年的悲剧，可以获得平反。同时，也让现代的年轻人知道我们的前辈曾经有过一段苦难的日子，毕竟这是我们在这片土地上走过的痕迹。
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2008-05-01
Understanding the Exceptions of Sedition Act
Since we are entering into the new political arena, we notice that some segments of our community, especially those who are fixed with outdated and narrow mindset, are still waving the flag of Sedition Act, 1948 to prevent an open discussion on sensitive issues. They are in an overzealous mood of lodging police report against Malaysians who wish to make a breakthrough of what appear to be a deadlock on certain issues, such as equality among races and freedom of religious. At the same time, some Malaysians are not keen to speak out for fear that they may be whacked with the offences of Sedition Act.
As such, I have done a summary of offences under the Sedition Act and listed out what constitute a seditious tendency act, speech and word. As one can conclude, it is a matter of how one is to frame his/her sentence to avoid being entangled into the trap of Sedition Act.
The Summary of Offences under the Sediton Act 1948
1. Principally, section 3(1) of the Act spells out the following act, speech or words deemed having seditious tendency:-
a. bring hatred against Government (means Federal or State) or against any Ruler (means Yang di-Pertuan Agong, Ruler or Governor of any State);
b. excite someone to bring unlawful alteration of the Government or Rulers;
c. bring hatred against the administration of Justice;
d. raise discontent or dissatisfaction amongst the subjects of the King and Rulers or among the inhabitants of Malaysia;
e. promote feeling of ill-will and hostility between different races; or
f. question right, status, position, privilege or prerogative protected by Part III (Citizenship), Art. 152 (National Language and learning of other languages), Art. 153 (Reservation of quotas pertaining to services, permit etc for Malay and natives of Sabah and Sarawak), and Art. 181 (Rulers’ sovereignty) of the Federal Constitution.
2. However, there are exceptions as defined under section 3(2) of the Act. The following act, speech or words shall not be deemed seditious:-
a. show any Ruler has been misled or mistaken in his measures;
b. point out errors or defects committed by the Government, the legislation or the administration of justice with a view to remedying such errors or defects. However, one can only question the implementation aspects of Part III, Art.152, 153 and 181 of the Federal Constitution, but cannot question the existence of such rights and position.
c. except for matters under Part III, Art.152, 153 and 181, point out, with a view to their removal, any matters having a tendency to produce feeling of ill-will between different races. This also includes using lawful mean to persuade an alteration of Government.
3. Once it is proved that the words used have a seditious tendency, intention of the accused is irrelevant (section 3((3) of the Act).
4. Penalty for the offences committed under the Act is fine not exceeding RM5,000 or imprisonment not exceeding 3 years or both (section 4(1) of the Act).
5. Prosecution shall only be made with the written consent of the Public Prosecutor (section 5(1) of the Act).
Some cases that brought or arguments that raised under the Sedition Act, 1948:
(i) Majlis Peguam Malaysia & Ors v Raja Sekaran Krishnan & Other (2004) 4 CLJ 239
Extraordinary General Meeting of Bar Council: Resolution to discuss allegations of impropriety made against then Chief Justice. Whether contemptuous and constituted offences under Sedition Act 1948?
Held: the convening of the EGM and the adoption of the proposed resolution would clearly constitute an offence under s. 3(1)(c) and 4(1)(a) of the Sedition Act 1948.
(ii) Lim Guan Eng v PP (1998) 3 CLJ 769
Uttering seditious words: Allegation that Malaysia had double-standard laws, that Attorney General had not prosecuted a 'criminal' and that the court had detained an innocent girl - Whether gave rise to seditious tendency?
Held: To allege double standards against the public prosecutor in deciding which cases ought to be brought before the courts amounts to denigrating and undermining the administration of criminal justice. An offence under Sedition Act.
(iii) PP v Param Cumaraswamy [1986] CLJ 606 (Rep)
Open appeal by way of newspaper statement to Pardons Board - The statement: “What is disturbing and will be a source of concern to the people is the manner in which the Pardons Boards exercises its prerogative”.
- Whether likely to create disaffection against Ruler?
Held: There was no tendency in the words to create antagonism, enmity and disloyalty among the people.
(iv) PP v Fan Yew Teng (1975)
The accused is charged with an offence under section 4(1)(c) of the Sedition Act for publishing a seditious publication namely, an article under the caption "Alliance Policy of Segregation `Evidence Galore' listed by Dr. Ooi". Whether the article gave rise to seditious tendency?
Held: The speech read as a whole, has gone beyond what is sanctioned by law and has in fact a seditious tendency.
(v) Mark Koding v PP [1982]
The Accused, a Member of Parliament, is charged under Sedition Act for uttering seditious words: “Keadaan eksklusif dalam negara kita di masa ini adalah hasil daripada baik hati kaum bumiputra membiarkan sekolah-sekolah China dan India menggunakan bahasa mereka selepas Merdeka”.
Held: Accused guilty as charged.
(vi) Melan Bin Abdullah & Anor v PP (1971)
The Utusan Melayu newspaper published a report of a talk reads: "Abolish Tamil or Chinese medium schools in this country". Sanction for their prosecution was given under s. 5(1) of the Sedition Act.
Held: It comes squarely within the definition of "seditious tendency" as extended by para. (f).
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2008-04-27
1988 Judicial Crisis: No Apology from the Government
If one looks at our Federal Constitution, strictly speaking, there is no separation of power among the Legislature, the Executive and the Judiciary, the 3 branches that form the Government. Members of the Executive are chosen from the members of Legislature who have won the Parliamentary seats by simple majority. The Prime Minister and the Cabinet members perform the duties of the Legislature as well. With a party whip system strictly enforced where party line is to be followed by members of Legislature, majority of the Members of Parliament will listen and follow any decision made by the Executive. This is different from United States of America, where the doctrine of separation of power is more strictly observed.
Similarly, our Federal Constitution does not codify institutional independence to the judiciary. Article 122B provides that the appointment of judiciary members shall be made by the Yang di-Pertuan Agong, the Supreme Head of our country, who shall act on the advice of the Prime Minister, after consulting the Conference of Rulers (Majlis Raja-Raja). The Prime Minister does not need to consult the incumbent Chief Justice when advising on the candidate for the number one post in the Judiciary. Only for positions below the Chief Justice will the Prime Minister need to consult the Chief Justice and other senior judges in the judiciary. As such, more often than not, the Prime Minister, who is the head of the Executive and commands the confidence of the majority of the members of Legislature, holds the trunk card in appointing and promoting the judges. In short, our Federal Constitution provides concentration of power with the Prime Minister, instead of practising separation of power.
Article 122B of the Federal Constitution was amended and put in force on 24 June 1994, after the 1988 Judicial Crisis. But such amendment merely reflected the changes from a 2-tier to a 3-tier court system and changes of the title from “Lord President” to “Chief Justice”. In other words, the appointment and promotion of judges lies with the Prime Minister and existed before the 1988 Judicial Crisis. This is not surprising because our judiciary system is inherited from Britain who only recently made changes to the manner in which judges are appointed and promoted.
Two years before Salleh Abas was suspended and sacked as the then Lord President, his Lordship delivered a paper at the 8th Commonwealth Law Conference entitled “Independence of the Judiciary”. The then Lord President proudly declared that “never in the history of our independence has there been any rejection by the Prime Minister or the Conference of Rulers or the King of the candidature submitted by the Judiciary. In fact, the Prime Minister takes this request of appointment as a matter of course.” ([1987] Malaysia Law Journal, xi, pg xii). It was the tradition that the Executive would not interfere with the judges’ appointment and promotion. However, such a tradition was not observed after the 1988 Judicial Crisis. The recent evidence produced during the “Lingam Tape” enquiry revealed that the former Prime Minister Tun Dr. Mathathir Muhammad rejected the candidature submitted by former Chief Justice Tun Dzaiddin without assigning any reason.
Dr. Mahathir refuses to apologise over the 1988 Judicial Crisis. The present Government proposes to make ex gratia payment but made it absolutely clear that such measure is not equivalent to an apology. In fact, Dr. Mahathir went one step further by saying that there was no procedural flaw in setting up the tribunal to try the alleged misbehavior of Salleh Abas. In form, the tribunal was set up in accordance with the then Article 125(3) and (4) of the Federal Constitution, but in substance, the composition of the then tribunal was tainted with vested interest and biasness, which made it difficult to adjudicate fairly and independently. Dr. Mahathir certainly hangs on to the literal wording of the Constitutional provision, without taking into account the issue of fairness in the trial. To go back to the legal arguments would require the whole case be re-opened. Be that as it may, in the eyes of the public, the Executive has clearly taken advantage of the vulnerable institutional protection accorded to the branch of Judiciary and hence, subjected the Judiciary to political interference.
Many incidents that happened after the 1988 Judicial Crisis point to the direction that judicial independence is eroding swiftly, such as the New Zealand trip between the Chief Justice Tun Eussoff Chin and senior lawyer Sdr. Lingam, the Ayer Molek cases which involved fishing for judges, cases involving mega libel damages awarded to a tycoon, the poison letter written by a judge and finally, the “Lingam Tape” case which hints of judicial brokering and case fixing.
The Government is revisiting the 1988 Judicial Crisis but stopped short of making an apology. In law, an apology from the Government is different from reversing the 1988 tribunal decision. An apology connotes that the Government will abide with the tradition of not interfering with judicial appointments, and merely takes the Chief Justice’s request for such an appointment as a matter of course. The fullest restoration of the complete judiciary independence requires unwithered political will. Without an apology from the Executive over the 1988 Judicial Crisis, the Legislature may need to amend the Federal Constitution to the effect that the Judiciary is given an institutional independence protection and sheltered from any interference from the Executive.
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2007-12-22
宗教自由与司法权限 (3)
因此，当任何政客与法学者指我国是个回教国时，其言论已与联邦宪法制定者的意愿相抵触，不符合最高法院的判决以及大部分的联邦宪法条文。
另一方面，当非回教徒坚称我国是个世俗国时，联邦宪法也拥有不符合世俗国定义
的条文。这是世俗国基本派所不能忽视的现实。但，任何世俗与回教国的争议却没有更改两个最根本的事实：即我国的政治结构与运作还是以联邦宪法为依归，因为宪法是我国的最高法典。而我国是个议会民主国家也都被各方坚称世俗国或回教国的基本派所认同。
因此，我国国民没有必要陷入不会带来任何突破的意识形态之争，因为无论你从哪一个角度来讨论与审查，我国均不是个100%的世俗国与回教国
我国政府自独立50年以来都是用自己的治国方程式成为一个进步的国家，以议会民主治国的模式能够给予各个领域的全面性关注，永不间断地争取更多国家发展来确保国家永续昌盛，让国民能够在拥有自主权的国土上安定生活。
民事与回教法庭的权限
在政治领域掀起的世俗与回教国诠释风波，因马华即时参与主流政治与共同拟定社会契会，尚还在控制范围内。但，近10年来，回教法庭却逐步的侵蚀民事法庭的权限，导致普通法可能须让位予回教法？
这里头牵涉两个层面的冲突：
(一) 两种法律的冲突：涉及全民，不分种族与宗教的普通法以及只限于回教徒的回教法；与
(二) 两个裁决纠纷的场合：同样的，涉及全民，不分种族与宗教的民事法庭以及只限于回教徒的回教法庭。
翻回联邦宪法第9篇，民事法庭如联邦法院、上诉庭与高庭均是联邦宪法的组成部分。但，回教法庭却须通过国会与州议会立法才可成立。
回教法庭的权限源自于联邦宪法，第9附录里的第2表：州事务表。这包括回教徒的家庭婚姻、遗产、回教税收与信托、回教堂、回教法律、处罚触犯回教教义的回教徒等权限。但，回教法庭的权限须明确，即法令清楚的赋予有关权限。若法令没有清楚列明的权限，回教法庭就设法审理。
新上任的联邦法院大法官阿都哈密在拉蒂法(Latifah)案件(2007年7月)中指出回教法庭的权限须是明确，通过法令白纸黑字的书写，不能暗喻或假示，更不能无限的上纲。这项判决不同意较早前，由前任大法官，阿末法鲁士所裁决的回教法庭权限可通过暗喻的判词(见Lina Joy案件2007年5月)。
民事与回教法庭的权限纷争在近年来有显著的上升，诚如阿都哈密大法官所言，独立50年后，跨州的通往、族群的通婚、皈依与脱教次数的增加，民事与回教法庭权限的日趋复杂，因此，国会议员应立法明确分辩这两种不同法庭的权限。
身为执政党成员的马华国会议员，就责无旁贷的须设法进行厘清民事与回教法庭的权限。马华总会长黄家定认为在鉴定个人是否是回教徒（包括自愿或足龄的皈依课题），须由民事法庭来鉴定，因为民事法庭的法律程序与权限涵盖全民，是比较恰当的裁决场所。
非回教徒享有宗教自由
基于近年来发生数宗印裔回教徒欲脱离回教不遂的案例， 有一些人开始质疑马来西亚是否还有实行宗教自由？
联邦宪法11（1）条已清楚列出“人人皆有权利信仰及奉行其本身之宗教，及在第（4）条款约束下传播之。”这条款保障宗教自由，或更具体而言，宪法已保障了非回教徒的宗教自由。
但，回教徒的宗教自由就不是绝对的。 高庭法官在Ahmad Yani b. Ismail (2004) 案件中就认为回教徒没有绝对的宗教自由。该法官也引用宪法11（4）条，即禁止向教徒传播非回教教义是最好的佐证。至今，已有9个州属立法管辖，并限制传播非回教教义予回教徒。
（3之3）
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2007-12-19
宗教自由与司法权限 (2)
最高法院判决
1988年，最高法院在Che Omar bin Che Soh v PP的案件一致接受世俗法律在宪法第162所赋于的最高地位。最高法院在拒绝接受控方律师的辩词，裁决联邦宪法是最高的法典，因此，判处毒犯死刑虽与回教教义不符合，但却没违宪。最高法院也强调我国是个世俗国，回教作为国教只局限在官方仪式而已。
从宪法制定者的意愿角度，再加上法律的立场，我国确定是个世俗国。那么为什么近10年来，马来族群与回教徒有不少人会不认同世俗国这立场呢？
宪法里的倾向回教国元素
原因就在于“世俗国”的定义。按威基百科（Wikipedia）的定义，世俗国是一个没有宗教信仰，也没有支持或反对任何宗教信仰与奉行。世俗国的政府资源也不得用于发展与维持宗教。
依据这定义与联邦宪法比照，联邦宪法里头确有数个条款并不符合100%世俗国的定义：
（一）宪法第3（1）条指出回教为联合邦宗教，即我国是个有宗教信仰的国家；
（二）宪法第11（4）条赋予各州政府（包括联邦政府所管辖的直辖区）权力，通过法律来管制或限制向回教徒传播任何其他宗教教义与信仰。在现有的法律下，非回教徒是不可向回教徒宣导其宗教教义的。
（三）宪法第12（2）条再次赋予联邦与州政府的权力，来创设及维持回教机构，及协助回教教育的发展。因此，政府可把国家资源用于发展回教。
（四）而最高元首的就职誓词也声明“必须在任何时候都尽力保护回教”（见宪法第4附录）。
（五）就算紧急状态实施的情况下，宪法第150（6A）条阻止国会权利扩展至回教法律的任何事务。
因此，回教徒法学学者与律师就理直气壮的阐述联邦宪法含有倾向回教国的元素，以辩称我国不是个世俗国。
宪法中的议会民主元素
以摆事实、讲道理的心态来面对着我国是否是个世俗国的课题，我们须承认联邦宪法中确实含有否定我国是纯世俗国的条款。但以此理由佐证我国是个回教国，又或是神权回教国，这又完全缺乏证据。因为，联邦宪法里有更多与世俗及议会民主相符合的条款：
（一）宪法第4条清楚说明它是我国的最高法律，而不是可兰经与圣训。
（二）宪法以大篇幅的条款阐明我国是个议会民主制度的国家，如第4篇的君主立宪制、内阁制、议会制等；第8篇的选举制；第9篇的司法制；以及第9附录列明联邦政府与州政府的立法权限。
换言之，联邦宪法的条文也否定任何声称我国是个回教国的言论。虽然我国首相提倡现代化回教理念，但该理念的10项原则里都没有指我国是个回教国。更须指出的是，倡导现代化回教理念完全不代表着我国是一个神权国，因为国家领导人都是以国会民主来治理国家，并且对国会负责。我国内阁的各种族与不同宗教的成员们都可以公开、开明的讨论国家发展政策，联邦宪法更是所有争议与争端的最佳解决依归。
（２之３）
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2007-12-15
宗教自由与司法权限 (1)
对于年长一辈的马华同志与各族国民来说，我国的国情是清晰、毋庸质疑的。她是个世俗国。曾几何时，回教国或回教化进程在我国这片土地上开枝散叶呢？但政治的现实与变迁令人惊叹！从80年代至90年代，安华在政府体制内扮演着催生与加速回教化的实践过程。在同一期间，行动党与打着建立回教神权国旗帜的回教党，所出现的直接与间接结盟，使到回教化的进程步伐加速前进。
面对着回教化进程，世俗国与回教国的诠释纷争、行动党的双面角色、以及华社感到的混淆，马华干部与党员应如何在政治变迁巨轮中扮演着落实党章与华社赋予的使命呢？本文将从历史、法律与政治等角度，提供论据与观点，以供参考。
联邦宪法制定者的意愿
欲了解我国国情就得从国家政治大蓝图，即联邦宪法着手。但，整部拥有183个条款及13个附录的联邦宪法，却无一处列明我国到底是个世俗抑或回教国。
虽然如此，法律的专业允许我们从联邦宪法制定者的意愿，来协助鉴定与理解我国的国情。当年参与制定联邦宪法涉及以下几个重要机构是：
(一) 由马华、巫统及国大党组成的联盟；
(二) 9个州属的马来统治者（即州苏丹）；
(三) 英殖民地政府；及
(四) 由当时英联邦法律体制内最优秀的宪法专家所组成的《李特宪制委员会》。
在经过审查制定联邦宪法的历史文献后，这批先贤们皆认为我国是个世俗国，有历史文献的佐证如下:
(一) 马华、巫统与国大党自1955年在立法议会选举获得选民的强力委托后，共同为独立建国草拟首个代表国内三大族群的社会契约。这份名为《呈交予李特宪法制委员会的联盟备忘录》，誌期1956年9月27日。第19项说明如下：
“宗教: 马来西亚的宗教是回教。惟在遵守这项原则的同时。非回教徒在信仰与奉行其宗教的自由将不受到任何阻碍，以及不可暗喻我国不是一个世俗国。”
(二) 草拟联邦宪法的李特宪制委员会成员之一，阿都哈密法官认同联盟的上述建议，并认为回教列为国家的宗教是无伤大雅，因为回教只用于官方仪式而已，况且至少有15个国家也有类似的条款。
(三) 联盟、州统治者与英殖民最高专员组成的三方工作委员会负起检讨李特宪制的报告书。在长达23次的会议中，其中有3次，即第1次(1957年2月22日)、第6次(1957年3月4日)以及第19次(1957年4月17日)的会议，联盟领导人重申整个宪法的草拟是以我国是个世俗国而制定的。
(四) 英殖民厅于1957年5月23日的伦敦宪制会上，先是担忧官方宗教的条款，但因联盟领袖表示无意成立回教神权国，并认同马来亚是个世俗国，因此也不反对了。
(五) 1957年7月，联盟政府提呈至马来亚立法议会的宪法草案白皮书特别解析：将回教作为联合邦的宗教，将不影响联合邦作为世俗国、马来统治者作为各自州属的回教领导的状况。当时，马华陈修信在立法议会参与辩论时就清晰的表达了联盟政府的立场。他强调虽然回教是官方宗教，但我国是个世俗国的原则以及信仰其他宗教自由权利已被广为接受，不容受到侵蚀。
1963年6月21日，《可博咨询委员会》，（一个确定沙巴、砂拉越及新加坡人民对于加入马来西亚的意愿的委员会），再一次的确认我国是个世俗国的地位是不受到回教是官方宗教的影响。
由此可见，“回教是联合邦的宗教”这项宪法条款，并不应该影响我国作为世俗国的本质，因为这是宪法制定者原来的心意。
（一之三）
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2007-08-26
Case Review on Lina Joy and Latifah
Case Review on Lina Joy vs. Majlis Agama Islam Wilayah Persekutuan & others [2007] 3 CLJ 557 and Latifah Bte Mat Zin vs. Rosmawati Binti Sharibun & anor, Federal Court Civil No.:02-39-2006(W)
While our mood has been geared toward celebrating 50th anniversary of independence, there are few issues on race and religion still lingering deep in the heart of Rakyat Malaysia. To a certain extent, Malaysians are in a cross road when faced with the issues such as freedom of religions and conflict of jurisdictions between syariah and civil courts. To borrow the wisdom of his Lordship, Abdul Hamid FJ, “after 50 years, the provisions relating thereto [the jurisdictional issues between the courts] will have to be reviewed and updated to meet the present circumstances.”[1]
Over the past 3 months, the highest court of our country has 2 opportunities to provide judiciary guidance on the issues of freedom of religion and conflict of jurisdictions. The 2 cases went before the Federal Court were Lina Joy vs. Majlis Agama Islam Wilayah Persekutuan & others[2]and Latifah Bte Mat Zin vs. Rosmawati Binti Sharibun & anor[3]. However, as the judgments delivered in one instance, it is obvious that the views of the judges sitting on the bench are sharply divided, principally along the line of Muslim and non-Muslim. In another instance, the judges sought help from the legislators to solve the jurisdictional problem between syariah and civil courts. The judges wanted the legislators to draw a clear jurisdictional line between the 2 systems of courts, so that the courts are freed from the burden of attempting to solve jurisdiction issue either at a snail pace or take an easier route by sweeping the problems into the carpet.
We first review the case of Lina Joy.
The Lina Joy case
The Facts A Malay woman, known as Azalina binti Jailani, applied to the National Registration Department (NRD) to change her name, first to Lina Lelani, then to Lina Joy. Reasons for doing so were she had renounced Islam for Christianity and she intended to marry a Christian. She made 2 attempts to change her name at the NRD since 1997. Ultimately, in October 1999, her application for change of name was approved but her replaced identity card (IC) states that her religion as Islam. Lina Joy made an application to NRD office to remove the statement “Islam” and her original name from her replacement IC. NRD refused her application on the ground that it was incomplete without an order of the Syariah Court to the effect that she had renounced Islam. Lina Joy then sought legal remedies.
Proceeding in the Court Below
The High Court dismissed Lina Joy’s application. She appealed. The Court of Appeal faced with the question of whether the NRD was right in rejecting Lina Joy’s application to have the statement of her religion as “Islam” deleted from her IC and in requiring a certificate or order from the Syariah Court. The Court of Appeal, by majority, answered the question in the affirmative.
Proceeding in the Federal Court
The question phrased before the Federal Court were as follow:-
a. Whether NRD is entitled in law to impose as a requirement for deleting the entry of Islam in Lina Joy’s IC that she produce a certificate or a declaration or an order from the Syariah court that she has apostatized?
b. Whether NRD has correctly construed its power under the National Registration Regulations 1990, in particular reg. 4 and 14, to impose the requirement as stated above when it is not expressly provided for in the Regulations?
c. Whether Soon Singh[4]was rightly decided when it adopted the implied jurisdiction theory propounded in Md Hakim Lee v. Majlis Agama [1997] 3 CLJ Supp 419 in preference to Ng Wan Chan v Majlis Agama (No.2) [1991] 3 MLJ 487 and Lim Chan Seng v Pengarah Jabatan Agama Islam [1996] 3 CLJ 231, which declared that unless an express jurisdiction is conferred on the Syariah Court, the civil courts will retain their jurisdiction.
The Federal Court, by a majority 2 to 1, answered the above questions as:
(a) NRD is entitled;
(b) NRC is right; and
(c) Soon Singh case is rightly decided. Ahmad Fairuz FCJ delivered the majority judgment (with Alauddin Mohd Sheriff FJ concurred) and Richard Malanjum FJ dissenting.
Issues on administrative decision made by NRD
On questions concerning the decision of NRD insisting a certificate or an order made by the Syariah Court pertaining to the conversion out of Islam, Ahmad Fairuz FCJ said that such decision is justified. NRD may request Lina Joy to submit documentary evidence in support of her declaration that she is no longer a Muslim.
Ahmad Fairuz FCJ warned that if NRD accepts one’s declaration that he/she has converted out from the religion of Islam, then NRD could run the risk of wrongfully certify a person as non-Muslim who in fact, according to the Islamic laws, he/she is still a Muslim. “Taking such stand would elevate the fear that those who born and taught as Muslims but willfully or unintentionally disregard the practice of Islam, will declare themselves as non-Muslims for purpose of avoiding punishment under the Islamic laws”, said his Lordship[5].
His Lordship was cautious of not to create any chaos in the Muslim society. As such, in his Lordship’s opinion, NRD has made a correct decision that mere statutory declaration by the applicant is not adequate to remove the statement “Islam” from a Muslim’s IC. This is because matter of converting out of the religion of Islam is a matter related to Islamic laws. If the Court rules that the decision made by NRD is unreasonable, this would mean that the Court wants the NRD to accept the facts that under Islamic laws, a Muslim can be regarded as converted out of Islam and is no longer a Muslim when he/she says that he/she has been converted out[6]. (my emphasis) This is an absolute undesired outcome.
When questions arises as to whether such decision would contradict with the notion of freedom of religion as enshrined under Article 11(1) of the Federal Constitution, the Chief Justice did not think so. His Lordship viewed that Article 11 requires Muslim to abide with the practice and rules of Islam, in particular when it comes to the issue of converting out of Islam. The manner in which a person desires to convert out of a religion shall follow the practice, rules and requirements as prescribed by that religion. Only when all requirements for converting out of Islam are followed and the relevant authorities under the Islamic laws have certified the apostasy, Lina Joy is considered a non-Muslim, or a Christian in her case. In other words, a person is prohibited from embracing and converting out of a religion at his/her own wishes. When he/she embraces a religion, common sense will require he/she performs all practices and abide with all rules of that religion[7].
The dissenting judge, Richard Malanjum FJ gave a different reasoning and decision. His Lordship referred to Article 8(2) of the Federal Constitution that prohibits any form of discrimination against citizens unless expressly authorized by the Constitution itself on the ground only on religion, race, descent or place of birth or gender in any law. Henceforth, regulation 4(c)(iva) of the National Registration Regulations 1990 that singled out Muslims to state his/her religion in IC is an additional procedural burdens and impediments which are not connected to personal laws. Such requirement is not applicable to non-Muslim and therefore, is a differential treatment for Muslim. In his Lordship’s view, it is tantamount to an unequal treatment under the law and has infringed Article 8(1) of the Constitution which proclaimed that “all persons are equal before the law and entitled to the equal protection of the law.” For this reason alone, his Lordship would grant relief sought by Lina Joy[8].
Richard Malanjum FJ opined that the NRD had acted beyond the requirements stated in the National Registration Regulations 1990. NRD should consider Lina Joy’s application within the context of the said regulations and should not bring in any extraneous factor. Lina Joy has made a statutory declaration that she had never professed or practiced Islam since birth. In fact, she has embraced Christian and she produced a baptismal certificate to support her declaration. NRD was only empowered to call for such documentary evidence that it considered “necessary to support the accuracy of any particulars submitted”, which is “Kristian” in this case, and Lina Joy has fulfilled such requirement. As such, in his Lordship’s opinion, an order from the Syariah Court does nothing to support the accuracy of Lina Joy’s particular that she is a Christian. His Lordship reminded NRD that it is not the function of NRD to ensure that Lina Joy has properly apostatized. Such matter should be left to the relevant authorities to take up any necessary action. Neither is it the statutory duty of NRD to ensure that a person has properly renounced the Islamic faith in accordance with the requirements by the Islamic authorities. As such, his Lordship held that the decision made by the NRD to request order or certificate of apostasy from the Syariah Court is legally irrelevant, and has acted ultra vires its power under the regulations[9], besides being irrational and unreasonable and breach of natural justice.
Another sharp contradiction between the majority and the dissenting judgment is Richard Malanjum FJ did not agree with Ahmad Fairuz FCJ that issue of apostasy is exclusively within the realm of the Syariah Court. In Richard Malanjum FJ’s view,
“apostasy involves complex questions of constitutional importance especially when some States in Malaysia have enacted legislations to criminalize it which in turn raises the question involving federal-state division of legislative powers. It therefore entails considerations of arts. 5(1), 3(4), 11(1), 8(2), 10(1)(a), 10(1)(e), 12(3) and the Ninth Schedule of the Constitution. Since constitutional issues are involved especially on the question of fundamental rights as enshrined in the Constitution, it is of critical importance that the civil superior courts should not decline jurisdiction by merely citing art. 121(1A). In my view, the said article only protects Syariah Court in matters within their jurisdiction which does not include the interpretation of the provisions of Constitution. Hence, when jurisdictional issues arise, civil courts are not required to abdicate their constitutional function. Legislations criminalizing apostasy or limiting the scope of the provisions of the fundamental liberties as enshrined in the Constitutions are constitutional issues in nature which only the civil courts have jurisdiction to determine[10].”
Personal view on the judgment against NRD’s decision The judgments and reasoning between the Chief Justice and Richard Malanjum FJ on the administrative decision made by NRD are clearly in contrast. The Chief Justice being a Muslim approached the apostasy issue on the ground that:
“Islam is not only a collective of dogmas and rituals but also is a complete way of life that consists of all areas of human activities, private or public, legal, politic, economy, social, culture, moral or judiciary. And if examines art. 11(1), 74(2) and item 1 of List 2 of Ninth Schedule, it is clear that Islam comprises, among other, Islamic laws. As such,… if a Muslim wishes to convert out of Islam, he/she should in fact use his/her rights in the context of syariah laws, which has its own jurisprudence on issue of apostasy. If he/she embraced and practiced Islam, certainly it means that he/she has to abide with the Islamic law which has prescribed the way he/she embraced Islam and also the manner in which he/she convert out of Islam. This is the meaning of embracing and practicing Islam.” [11]
In addition, the Chief Justice took into account the public interest in reaching his conclusion, in particular the Muslim society. If the Court permits Muslim to convert out of Islam at his/her own wishes and fancies, the Muslim society would be in chaos. In the circumstance, consideration of public interests override individual interest, i.e. Lina Joy’s right to convert out of Islam merely by her own declaration within going through the process prescribed under the Islamic laws.
I would agree with the observation made by the Chief Justice which is as follow:
a. issue on conversion of religion is directly related to rights and obligations of Lina Joy as a Muslim before the conversion is made;
b. Article 11(1) should not be interpreted as giving right of freedom without limit; and
c. Right to embrace and practice a religion should subject to the principles and practices of that religion.[12]
Despite Richard Malanjum FJ’s forceful dissenting judgment, with respect, I could not agree with his Lordship’s reasoning because his Lordship fails to appreciate the nature of Islamic faith is beyond the relationship between an individual and the God. It is the whole Islamic institutions which cover all aspects of Muslim’s life that come into picture. It is not the issue of freedom of religion. Neither is there any discrimination based on religion. It is the practice of a religion that one has to observe and respect. The respect and acceptance of different religion practice is crucial to maintain harmony in our multi-racial and multi-religion society. As such, I agree with the majority judgment which upheld the NRD’s decision.
Issue on Soon Singh case
However, I fail to see any sensible reason in the majority judgment over the issue of implied jurisdiction of Syariah Court as decided in the Soon Singh case.
Dr. Cyrus Das, counsel for Lina Joy, submitted that Soon Singh case was wrongly decided. The case stated that the Syariah Court’s jurisdiction derived from the State List described in Ninth Schedule of the Constitution, it does not need to be expressly granted by an Act of Legislatives. According to Dr. Cyrus Das, this is in contradiction with the cardinal principle of legislations or rules enacted have to be gazette before the laws come into effect. The effect of Soon Singh case is that laws is assumed to be in existence even though the matter which the laws purported prescribed is just being listed in item 1, State List of Ninth Schedule and the legislators has yet to make laws with respect to the matter. Soon Singh case fails to differentiate between the power to make law on a subject matter and the law enactment itself. The entries in the list are merely heads or fields of legislation, which demarcate the area over which the appropriate legislature can operates[13].
Ahmad Fairuz FCJ did not agree with Dr Cyrus Das’ submission, citing the only reason that since Syariah Court has been clearly given the jurisdiction to adjudge matters relating to embracing Islam, it is only logic and by necessary implication, the Syariah Court has jurisdiction to adjudge matters on conversion out of Islam or apostasy[14] . As such, civil courts should not interfere with cases concerning apostasy.
However, Richard Malanjum FJ disagreed with the Chief Justice’s reasoning. His Lordship referred to 2 eminent judges, first: Hashim Yeop Sani CJ’s view in Dalip Kaur[15]case as follow:-
“The new cl. (1A) of art.121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts. But that clause does not take away the jurisdiction of the civil court to interpret any written laws of the States enacted for the administration of Muslim law. If there are clear provisions in the State Enactment, the task of the civil court is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment. A clear provision can, for example, be in the form of a provision imposing obligation on the relevant authority to keep and maintain a register of converts who have executed a deed poll renouncing Islam.”
And second, Harun Hashim SCJ in Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib[16]as follow:-
“I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether syariah court has jurisdiction and not whether the state legislature has power to enact the law conferring jurisdiction on the syariah court.”
Richard Malanjum FJ concluded that “the doctrine of implied power must be limited to those matters that are incidental to a power already conferred or matters that are necessary for the performance of a legal grant. And in the matters of fundamental rights, there must be as far as possible express authorization for curtailment or violation of fundamental freedoms. No court of authority should be easily allowed to have implied powers to curtail rights constitutionally granted[17].”
In my view, Richard Malanjum FJ’s decision that jurisdiction must be expressed and not implied is more persuasive. The syariah court will not be deprived of any jurisdiction over matters that it has power to make laws pursuant to the State List of Ninth Schedule. The syariah court would have to wait until the state legislature makes law pertaining to matter under the State List. The express jurisdiction approach will reduce, if not eliminate, any conflict of jurisdiction between the syariah and the civil court, besides providing certainty to our dual judiciary system.
The issue of conflict of jurisdiction was once again raise in the case of Latifah. We now turn to this case.
Facts of Latifah case:
The facts are straight forward. Daughters of second wife and third wife were disputing over the money in the joint account between the deceased and the third wife, whether it formed part of the deceased’s estate or had been given by the deceased as gift inter vivos, which is recognized in Islamic law as “hibah”. All parties involved in this case are Muslims.
The High Court ruled that the Islamic law applied for determination of the above issue. The Court of Appeal held that in determining whether the assets is a gift inter vivos or hibah between Muslims, the Syariah Court shall have the jurisdiction, to the exclusion of civil High Court by virtue of Article 121(1A) of the Federal Constitution[18].
Issues Before the Federal Court:
The case went to the Federal Court, and the issues were on the conflict of jurisdiction between the civil court and the syariah court. The Federal Court upheld the decision of its lower courts and decided that it is the syariah court which has the jurisdiction to decide the issue[19].
Abdul Hamid FJ delivered the judgment of the Court, with the other judges concurred. His Lordship first reviewed 46 cases (including Lina Joy case) which dealt the jurisdictional conflict issue over the past 2 decades, and went on to examine the Ninth Schedule in details. Ninth Schedule is a “Legislative List” of Federal and State. It contained matters that the Parliament and the States’ Legislature may make laws.
The Parliament has power to make laws pertaining to, as his Lordship observed, inter alia, the following:-
a. marriage and divorce of non-Muslim, whereas State Legislature has jurisdiction to make laws on Muslim’s marriage and divorce;
b. succession, testate and intestate; probate and letters of administration, except Islamic personal law relating to gifts or succession, testate or intestate;
c. criminal laws such as those provisions contained in the Penal Code. Even though State Legislatures have power to make laws for the creation and punishment of offences by Muslims, the laws shall not be inconsistent to the Penal Code;
d. Islamic banking, Islamic finance and takaful as banking and finance came explicitly under the Federal jurisdiction.
Jurisdiction of Syariah and Civil Courts
A syariah court in a State is established when the Legislatures make law to establish it. Session Courts and Magistrates’ Courts are in the same position as the syariah court as the former is also come into existence through Parliament make laws. The position of civil High Courts, Court of Appeal and Federal Court are different as these courts formed part of the Constitution.
On the jurisdiction of the courts, his Lordship has this to say: “a question arises whether a particular provision of a law made by Parliament or the State Legislature is in contravention of the provisions of the Ninth Schedule; it is the Federal Court that has jurisdiction to decide[20].”
However, on the jurisdiction of syariah court, it is limited to the matters allowed under item 1 of the State List. For example, it is limited to Muslims. It can choose one or more matters as listed in item 1 of the State list so long as the matters which conferred the jurisdiction is expressly provided for.[21]
As his Lordship observed both civil and syariah court derived their jurisdictions from statutes, i.e. Constitution, federal law or State law, as the case may be. So, the parties should look at the relevant statutes to determine whether they have jurisdiction or now. Even if one court does not have express jurisdiction over a matter, it does not follow that the other court automatically granted with the jurisdiction. For an example, if one party is a non-Muslim, the syariah court does not have jurisdiction over the case, even if the subject matter falls within its jurisdiction[22].
His Lordship provides some guidance when there is situation where the State law has infringed on the matters within the Federal Lists. His Lordship reminded that Article 121(1A) was not introduced to oust the jurisdiction of the civil courts, and if the judges face with jurisdictional issue between syariah court and the civil court, they should ask the following questions:-
a. are such laws constitutional in the first place? and
b. constitutionality of such laws is a matter for the Federal Court to decide.[23]
On issue related to the interpretation of the federal constitution, the Federal Court has the final say, not the syariah court. If the Federal Court says that the syariah court has jurisdiction, it has, and vice versa[24].
It is clear that Latifah case reinstates that express jurisdiction position as decided decades ago in cases like Ng Wan Chan and Lim Chan Sing. Latifah case appears to endorse the observation made by Richard Malanjum FJ in Lina Joy case that syariah court shall only have express jurisdiction. Since Latifah is the latest Federal Court decision on the issue of conflict of jurisdictions between syariah and civil courts, and the judges on the Latifah’s bench have the opportunities to read Lina Joy’s judgment, I am of the view that we should follow Latifah’s decision that the syariah court’s jurisdiction shall be conferred expressly by the State laws (or Parliament laws made in relation to the Federal Territories) and there is no implied jurisdiction by merely referring to the State List of Ninth Schedule.
Legislature Should Step
In Abdul Hamid FJ observes that with more inter-State movement and inter-marriages, and more frequent conversation to Islam and re-conversation, the jurisdictional problems between civil and syariah courts have become more complex. In some instances, there may be cases where both civil and syariah courts have no jurisdiction. His Lordship was of the view that such problem is not for the court to solve as the court owes their jurisdiction to statues. It is for the Legislature to step in, to decide as a matter of policy what should be the solution and legislate accordingly to solve the jurisdiction problems between these 2 systems of courts[25].
As such, until the jurisdictional problem is solved by the Legislature, civil court can only deal with matters within its jurisdiction. If an Islamic issue arises, then the party will have to go to the syariah court. Likewise will be happened in syariah court. But if one of the parties is a non-Muslim, the route for switching to syariah court will be stuck. The party will have no alternative to solve his/her problem.
The Prime Minister has said that he is aware about this complex jurisdictional conflict between the syariah and civil courts. He has requested the public to be patience as the Prime Minister Department and the Attorney General would need time to look into the issues and find ways to clear the ambiguity. As member of the legal profession, I am eagerly looking forward to the learned and highly wisdom legislators to quickly shoulder the responsibility and provide solution to this conflict of jurisdiction which is unable to solve by the judiciary for decades.
Quek Ngee Meng, Written on 26 August 2007 for the assignment of Issues of Constitutional Law, a subject of Diploma Lanjutan Undang-undang Syariah dan Amalan Guaman (DSLP)
[1] Latifah Bte Mat Zin vs. Rosmawati Binti Sharibun & anr, Federal Court Civil No.:02-39-2006(W),at p 51.
[2][2007] 3 CLJ 557
[3]Federal Court Civil No.:02-39-2006(W)
[4]Soon Singh Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & anr [1999] 2 CLJ 5 FC
[5]Lina Joy, at p575
[6]Ibid, at p581
[7]Ibid, at p587
[8]Ibid, at pp606-607
[9]Ibid, at pp608-610
[10]Ibid, at p613
[11]Ibid, at p594
[12] Ibid, at pp596-597
[13]Ibid, at p590
[14]Ibid, at pp592-593
[15] Dalip Kaur v Pegawai Polis Daerah Balai Polis Daerah, Bukit Mertajam, & anor [1991] 3 CLJ 2768; [1991] 1 CLJ (Rep) 77 SC
[16]1993] 1 CLJ 264, at p268
[17]Lina Joy, at p619
[18]see [2006] 4 MLJ 705
[19]Latifah, at pp24-26
[20] Latifah case, at p27
[21] Ibid, at pp29-30
[22]Ibid, at pp30-31
[23] Ibid, at p36
[24]Ibid, at p50
[25]Ibid, at p52
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