November 10, 2012
Reflecting upon Recent Issues
by Shad Saleem Faruqi (11-01-12)@www.thestar.com.my
There have been a little law issues being argued of late like physical state, parliamentary cabinet as good as genocide penalty.
IN a last fortnight, a series of engaging open law issues captured a open imagination.
- Secular state: De facto Law Minister Dato' Seri Nazri Aziz crossed swords with DAP's Lim Kit Siang over a latter's claim which Malaysia is a physical state.
Dato Seri Nazri rightly forked out which nowhere in a Constitution is there any mention of a word "secular".Further, as Islam is recognized in a Constitution as a sacrament of a federation, it would be improper to regard a republic as a physical state.
In await of this view, a single can prove out which a word "Islam" is referred to during slightest twenty-four times in a Constitution, a words Mufti, Kadi Besar as good as Kadi during slightest once each. In Schedule 9, List II, divide 1, state legislatures have been available to request Islamic law to Muslims in a accumulation of polite areas.
The state legislatures have been also available to emanate as good as retaliate offences by Muslims opposite a precepts of Islam except in relation to matters inside of sovereign jurisdiction.
Syariah courts may be established. Under Article 121(1A), syariah courts have been independent of a polite courts.On a alternative side, Lim rightly forked out which Malayan constitutional documents as good as pronouncements by early leaders prove which during a bieing born a association was meant to be a physical state.
To behind this view, a single can prove to a Supreme Court decision in Ch! e Omar C he Soh's case which although Islam is a sacrament of a federation, it is not a basic law of a land.
Article 3 upon Islam imposes no boundary upon a energy of Parliament to legislate discordant to a syariah. Islamic law is not a general law of a land possibly during a sovereign or state levels.
It relates usually to Muslims as good as which too in singular as good as specified areas. It is notable which non-Muslims have been not theme to syariah or to a office of a syariah courts.
Ever since Tun Dr Mahathir Mohamad's declaration upon September 29, 2001 which Malaysia is an Islamic country, this discuss ignites intermittently as good as no firm conclusion is ever possible since of a problem of semantics a assignment of different meanings to a words "secular" as good as "theocratic" by participants in a discourse.
My personal perspective is which if by a theocratic state is meant which a Law of God is a autarchic law of a land as good as which a temporal ruler is theme to a final direction of a theological head, afterwards obviously Malaysia is not a theocratic state due to a presence of a autarchic Constitution as good as a major energy of physical authorities over a eremite establishment.
At a same time if by a physical state is meant which law as good as sacrament have been distant from any other; which there is no legally prescribed central religion; which sacrament is not interwoven in to a affairs of a state; which no state await is since to any eremite creed; as good as which sacrament is left wholly to private establishments, afterwards Malaysia is positively not a physical state.
Then how should we be described? It is submitted which a Malaysian authorised system is neither fully physical nor fully theocratic. It is hybrid. It permits authorised pluralism.
It avoids a extremes of American style secularism or Saudi or Taliban type of eremite carry out over all aspects of life. It walks a middle path. It promotes piety though does not demand up! on ideol ogical purity.
Muslims have been governed by divinely ordained laws in a little fields though in others their life is regulated by Malay adat as good as by physical supplies enacted by elected legislatures. Non-Muslims have been wholly regulated by physical laws.
In sum, a physical versus theocracy discuss is full of semantics as good as polemics as good as will take us nowhere.
- Parliamentary committee: The Government is considering environment up a permanent name cabinet in Parliament to scrutinise Suhakam reports.
If this pierce comes about it will not usually catapult tellurian rights to a forefront of parliamentary discussion, it will also do a good understanding to accelerate a picture of council as a grand inquest of a nation.
A system of good integrated as good as good serviced investigatory committees as in a United States as good as a Philippines holds a usually pass to enabling council to turn an in effect countervailing force to a ever increasing powers of a executive.
An increase in a series of permanent name committees from a benefaction 5 to a single for any supervision dialect as in Britain, a single corner cabinet upon Human Rights, a Dewan Rakyat cabinet upon Public Complaints to examine a reports of a Public Complaints Bureau as good as a corner cabinet upon subsidiary legislation will do much to improve a institutional efficacy of council as good as to enable backbenchers to play a some-more suggestive role.
To await parliamentarians in this slip function, non-partisan await structures ought to be established. MPs should be reserved investigate assistants. The Houses should have their own authorised counsel. In a demeanour of INTAN as good as ILKAP, an Institute of Parliamentary Affairs should be determined to train MPs as good as to hone their abilities to investigate as good as break down into parts issues.
- Death penalty: Amnesty International has praised Malaysia! for a o ffer to annul a genocide chastisement for drug trafficking. The offer is in a early stage as good as it is a make a difference of speculation which of a three alternatives will in conclusion be accepted.
First, maintain a genocide chastisement for critical crimes though mislay a mandatory nature. Restore judicial option to tailor a punishment to suit a significant pattern of any case.
Second, reduce a series of offences for which a genocide chastisement may be imposed as during benefaction for waging fight opposite a Yang di-Pertuan Agong, offences opposite a ruler or governor, abetting mutiny in a armed forces, murder, decrease of suicide, try by a life convict to attempted murder if harm is caused, abduction or abduction in order to murder, hostage-taking, gang robbery with murder, drug trafficking as good as wrong receive of firearms.
Third, annul a genocide chastisement exactly as in 87 countries plus twenty-seven others which have not executed any one for a last 10 years.
Which of a alternatives will be selected will in conclusion be a make a difference of high process dictated as much by tellurian rights considerations as by open opinion. It is submitted which upon fundamental issues of right as good as wrong, renouned opinion, whilst since due weight, should not be authorised to foreordain idealisation decisions.
As Jesse Jackson once said: "Leaders of piece do not follow opinion polls. They cover opinion, not with guns or dollars or position though with a energy of their souls."
* Shad Saleem Faruqi is Emeritus Professor of Law during UiTM.
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