Wednesday, May 25, 2016

From Malaysiakini news:- ‘Jamil Khir trying to make aberrant normative’

Federal minister Jamil Khir Baharom’s view that a ban on unilateral conversion of minors is unconstitutional is so out of sync with constitutional theory as to be bizarre, said DAP MP for Ipoh Barat M Kulasegaran.

“He’s trying to make what is aberrant normative,” said Kulasegaran.

Jamil Khir had offered the view in Parliament, in response to Kulasegaran’s written question on when unilateral conversions of minors would be banned, that such a ban would be unconstitutional.

“In all probability, as the basis for the minister’s view, Jamil is placing a narrow construction on the word ‘parent’ in the relevant clause pertaining to religious conversion of minors which if done unilaterally is disallowed,” asserted Kulasegaran.

The DAP national vice-chair said the stipulation in the constitution on interpretation of words in the general clauses of the document clearly state that words appearing in the singular should be taken as plural and those appearing as plural should be interpreted as plural.

“But from 2002, the Bahasa Malaysia editions of the constitution had begun supplanting the Bahasa term for parents which is ‘ibu bapa’ with ‘ibu atau bapa’ and this has engendered the confusion that now pervades the interpretation of stipulations barring unilateral conversions in cases where parents have become estranged or are divorced,” said Kulasegaran.

He said Jamil’s opinion that a bar on unilateral conversions was unconstitutional flies in the face of a 2009 cabinet directive that children of estranged or divorced parents must adhere to the religion of the parents when they were married and not when one spouse elects to convert.

“Though that cabinet directive did not have the force of law, it was reasonable and fair in the construction it placed on the gender equality and freedom of religion clauses guaranteed by the constitution,” pointed out Kulasegaran.

He said that though no further developments on the contentious issue were forthcoming after the 2009 cabinet directive was issued, the formation last year of a five-member cabinet committee to recommend measures to alleviate the issue was a promising initiative.

“More so when one member, Health Minister S Subramaniam, announced in January that the prime minister had agreed in principle to consider amending the law so that children cannot be converted to another religion without the consent of both parents,” said Kulasegaran.

He said that in the light of these developments, Jamil Khir’s view that barring unilateral conversions would be unconstitutional was “bizarre and not in keeping with ministerial consensus and prime ministerial inclination on the issue”.

“The PM must urgently put right this matter and steer a resolution of this vexed issue that is in accord with constitutional guarantees on gender equality and equal treatment under the law,” argued Kulasegaran.

From Malaysiakini news:- Dr M: We must act like we have no parties to defeat Najib

Former premier Dr Mahathir Mohamad has called on the opposition and the public to cast aside their identities as party members in the upcoming twin by-elections to ensure Prime Minister Najib Abdul Razak's defeat.

Speaking after a meeting with several opposition MPs in Putrajaya, Mahathir said this was because some of Najib's policies, such as the goods and services tax, have burdened all regardless of political allegiances.

"We are agreed that in these by-elections we must behave as though we don't belong to any party.

"We are a people's movement... Everyone regardless of whether they are with BN or the opposition should support whoever is fighting against Najib," he said.

Most of the MPs attending the meeting were from DAP, namely M Kulasegaran, Steven Sim, Zairil Khir Johari, Lim Lip Eng, Thomas Su, and Julian Tan.

Also in attendance were Amanah's Khalid Samad, Mujahid Yusof Rawa and Raja Kamarul Bahrin; Mahfuz Omar from PAS, Shamsul Iskandar Md Akin from PKR and DAP vice-chairperson and MP for Ipoh Barat M Kulasegaran.

They came in their personal capacities to discuss the upcoming by-elections.

However, they did not discuss which party should contest in Sungai Besar or Kuala Kangsar.

Mahathir said this would be discussed at another meeting involving those who signed the Citizens' Declaration during its launch, as well as the opposition.

Asked about the possibility of three-cornered contests, Mahathir expressed confidence that the issue could be dealt with.

"...two-, three- or five-cornered, we have our ways to deal with this."

Wednesday, May 18, 2016

Malaysia Kini :- Kula: Citizens’ Declaration now has a momentum all its own

by Terence Netto

The Citizens' Declaration, an initiative led by Dr Mahathir Mohamad urging the removal of Prime Minister Najib Abdul Razak, now enjoys a momentum all its own, says DAP national vice-chair M Kulasegaran.

“The fact that the initiative was bipartisan and readily drew support from civil society groups answered to a need felt widely among the public,” opined the MP for Ipoh Barat.

He said the forces behind the declaration, which was launched on March 4 by Mahathir and backed by opposition parties and civil society groups, has garnered 1.2 million signatures and now has a “momentum all its own.”

“This was caused by the magnitude of the sums involved in the 1Malaysia Development Berhad (1MDB) issue, the brazenness of it all had struck at deep chords of reaction among the public such that it didn’t matter who led the initiative or that there was consensus on what had brought it about, and what the long-term remedies would be,” explained the federal legislator.

“What mattered more was that something instinctive had to be done, some notice that this could not pass muster had to be served, so that the perpetrators of what I would call the grandest larceny of the half-century would be called to account,” he elaborated.

Kulasegaran said the purported letter written by the jailed Anwar Ibrahim to PKR leaders that is being interpreted as a warning of the likelihood of treachery lurking in the designs of Mahathir and former finance minister Daim Zainuddin should be taken “not as a caveat against the CD but as a caution that the movement can be manipulated to serve ulterior motives over nobler ends”.

“It is advice and should be regarded as such. It should not be taken as a dampener on the campaign to get the PM to quit but as a reminder that the larger goals of institutional reform should not be lost sight of,” he argued.

Kulasegaran said Mahathr would be deluding himself if he thought that “Najib can be removed in one surgical move that would leave Umno intact and unreformed”.

“The removal of Najib on account of the 1MDB issue cannot be effected without acquiescence in the need for reform of the system that had brought about whole sordid affair.

“Whether this acquiescence will be followed up by some resolution about the need for reform is the question that is troubling the federal opposition,” he noted.

Kulasegaran said the opposition existed for precisely the reason to pressure for change and reform when movements to bring these about stall for want of direction or energy or are deviated by reason of treachery.

“Nothing reformatory is going to come nice and easy. All have to be struggled for. Alliances, both expedient and principled, have to be made. The price of reform is eternal vigilance,” he opined.

Tuesday, May 17, 2016

Malaysia Kini :- Ex-judge: Courts must not fear syariah agencies in conversion cases

Islam is about justice, mercy and compassion, but such principles are not reflected in the way the religion is administered in Malaysia.

This can clearly in cases of unilateral conversions, including the one involving kindergarten teacher M Indira Gandhi, whose three children were converted by her former husband without her consent or their knowledge, says former Sessions Court judge Noor Farida Ariffin.

“Let's try to salvage the image of our religion. As a concerned Muslim, I am so distressed and perturbed by the fact that we have been so unfair to non-Muslims.

“Islam is all about justice, mercy and compassion, but we don’t see that in the way Islam is being administered,” Noor Farida told Malaysiakini.

Specifically, Noor Farida referred to the Court of Appeal decision last Dec 30 that overturned, on a technicality, a High Court ruling quashing the unilateral conversion of the three children by their now Muslim father, Ridhuan Abdullah.

In a majority decision, the three-man bench headed by Justice Balia Yusof Wahi also ruled that the civil court has no jurisdiction to hear the children’s conversion, which it said was solely the purview of the syariah court.

However, Noor Farida argued that the decision is unfair to Indira and highlights weaknesses in the country’s administration of justice.

“The result is not fair to her… because, to me, when they say that they have no jurisdiction, that is an abdication of responsibility (by the civil court).

“What surprised me is that they (the judges) bound themselves to the Perak State Enactment. The civil court is not there to apply syariah law,” said Noor Farida, who now heads G25, a civil society group comprising retired civil servants and eminent Malaysians.

She cited provisions under Section 50 of the Perak State Enactment 2004, which confers jurisdiction to the syariah court.

Malaysian Bar president Steven Thiru had previously argued that the Court of Appeal’s reliance on Section 50(3)(b) of the 2004 Enactment was “misplaced” because it clearly states: “The Syariah High Court shall… in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims…”

When dealing with matters of conversion, Noor Farida also said the requirements would be for a person to recite the Muslim declaration of faith, provide consent, as well as have a witness.

“But if you are a child, how can you consent? And on top of that, they were not even present,” she stressed.

Indira and Ridhuan’s children – then aged 12, 11 and 11 months old – were converted without their presence and without Indira’s knowledge.

The youngest child, now eight years old, was snatched away from Indira () and has stayed with Ridhuan ever since. Indira has not seen her daughter for the past seven years.

“In that case the parents can convert them. But because of the Subashini case, unfortunately, the Federal Court now defines that ‘parents’ mean just ‘a single parent’.

“That was a hurdle they did not manage to overcome because of their decision, which I feel was erroneous,” Noor Farida added, agreeing that Indira was denied her constitutional right to legal redress.

The Subashini Rajasingham vs Saravanan Thangathoray case in 2007 saw the Hindu wife instructed to seek recourse through the Syariah Appeals Court to stop her Muslim convert husband from converting their children without her consent.

‘Law reforms necessary’

The cabinet had in 2009 decided against unilateral conversion of minors but progress on proposals to amend the relevant laws have been very slow.

Among others, Minister in the Prime Minister’s Department Nancy Shukri had reportedly said that Putrajaya plans to table in Parliament amendments to the Law Reform (Marriage and Divorce) Act 1976, the Administration of Islamic Law (Federal Territories) Act 1993 and the Islamic Family Law (Federal Territories) Act 1984.

This is to ensure that issues like child custody, alimony and division of marital assets are resolved in the court in which one’s marriage was registered.

In acknowledging necessity of ongoing attempts to amend the relevant federal laws, Noor Farida also said there is a proposal by the Negeri Sembilan state government that could be taken into account.

The proposal is any person who is married, and wanting to convert to Islam, must first go to the civil court under which his marriage is registered and resolve outstanding matters.

This would include divorcing the non-Muslim spouse and settling issues of maintenance, custody and others.

“Once that is settled, then the conversion can be registered. Then it is fair to everyone.

“The first principle of Islam is justice… everywhere in the Quran there is talk about justice,” she added.

‘No need for special courts’

Other proposals mooted include the setting up of a special court to jointly hear cases involving a Muslim and non-Muslim couple.

In neighbouring countries, such as Indonesia, specific provisions or entire laws can also be challenged in a Constitutional Court to push for amendments to be made.

However, Noor Farida argued against such a proposal.

“I am totally against the idea of a joint court because the separation of powers under the law is very clear in the Federal Constitution.

“All the court needs to do is to apply the law and to bear in mind that the Federal Constitution is the supreme law. It has to apply civil laws,” she said, adding that she was shocked by the Court of Appeal’s decision in Indira’s case.

Noor Farida said it is also pointless to set up a Constitutional Court as this function is already being carried out by the Federal Court – that is to interpret the law.

“But, as I said, they need to interpret civil law and not syariah law as the separation of powers is very clear under the Federal Constitution.

“We just need courageous judges. Unfortunately, when it comes to religion, they are very reluctant… they don't want to offend the syariah authorities,” she said.

“They bend over backwards to avoid making a decision, or decisions that would make people perceive syariah law as a separate law,” she added.

This reluctance, she noted, was despite Article 4 of the Federal Constitution recognising the syariah court as a subordinate court.

The Federal Court last month instructed inspector-general of police Khalid Abu Bakar to arrest Ridhuan, after having found the committal order against him issued by the High Court in Ipoh to be justified as he had failed to bring the youngest child to the jurisdiction of the court.

However, the police have failed to locate him, saying that Ridhuan’s current whereabouts are unknown.

Saturday, May 14, 2016

How serious is the Malaysian Election Commission in bringing about free, fair and clean elections?

Press Statement by M Kula Segaran, MP for Ipoh Barat and DAP National Vice Chairman in Ipoh on 14th May, 2016

How serious is the Malaysian Election Commission in bringing about free, fair and clean elections?

Polling for the Tamil Nadu (India) state election will be held on Mayth 16. The state election involves a total 234 constituencies and over over 70 million eligible voters.

YB A. Sivanesan, YB Kesawan, Segaran (DAP Ipoh Barat Chairman), VK Vembarasan (DAP Klang), Sdr. Rajalingam and Mohd. Arafat (PKR Tambun chief) and I have arrived in Chennai on May 6 to witness the election.

We toured the many areas in the state for the next 5 days to get an insight of the election without any assistance from the relevant authority. On May 12th and 13th, we were given briefings by the State Election Commissioner and his subordinates.

Thereafter we attended a 2 days briefing on the do’s and don’ts of the General State Elections at the Election Commissioner’s office of Chennai, Tamil Nadu. The head of Election Commission,mr. Chandran Mohan and others briefed us and took questions from us.

Among the matters we were told were:-

1) A parliamentary candidate can spend up to 28lakhs.  (A Malaysian candidate contesting state elections can expend to the limit of RM170k). Each candidate MUST open a current account and monies in and out including donations must be reflected.

2) Candidates are not allowed to put up banners and posters in their constituency. But during the elections, if the candidate is holding a public rally or meeting the people at a certain area, the candidate is allowed to put up banners and posters within 12 hours before the event and all these banners and posters must be removed within 4 hours after the event.

3) The electoral rolls of voters have photos of the voters. Further, CCTV and Video cams are operating at all times at the voting center. This process prevents cheating and does away with ghosts voters.

3 (b) any person residing in the constituency can register as a voter if he has reached the age of 18 years old. On line registration is allowed. We are given to understand that presently nearly 90 % of eligible voters have registered as voters.
3(c) whenever a person applies to be registered as a voter, the election commission will send an officer (a municipal clerk) to verify this by going to the applicants address and confirm same. One MUST be resident in a particular constituency for 6 months to be eligible to register as a voter.

4) During the Parliamentary elections, the local councils, state Government and related elected representatives are disallowed to announce any new policy or do any act which may influence the voters.

5) We were showed the process of electronic voting. We were taken to a school in Chennai and even the inedible ink was put on our finger.

6) IT technology is used to the maximum. Every election acts like speeches etc are all videotaped. Even the TV announcements were scrutinised by the election officers to ensure no violation of the rules takes place

7) for the first time the Election Commission has introduced a team of investigators known as "flying squad". The team is headed by a local magistrate and comprised of federal and local police, income tax officers and women officers to stop and randomly check vehicles if monies or gift are being transported which might violate election rules.

Our own bus was stopped 3 times and videos were done on what we were taking in the bus. Questions were asked where and what we were doing etc and amount of monies being taken.

8) Any political party can set up their own TV station and telecast the policies and programmes of their party. Printing presses are allowed to flourish without control.

9) independent observers are appointed to oversee the police, media and the election officers. These observers are from different parts of the country and they give updates and reports to the election offices on the effectiveness of the electoral activities plus suggestions and criticisms. The observer role we notice is very much the role played by BERSIH in Malaysia. Except present is an NGO with no cooperation from the EC. This role of observer needs to be incorporated in our electoral system.

During our tour, we were exposed with the latest full proof technology and in the process learned a lot. We are grateful to both the Indian High Commission in Malaysia, in particular His Excellency Mr Tirumorthi and the Election Commission of Tamil Nadu for facilitating the tour.

Many issues including vote rigging, ghost voters, lack of media space for opposition parties have continued to surface in Malaysia general elections although the nation has held 13 general elections.

I am sure that Malaysia Election Commission (EC) is aware of how these issues can be tackled by adopting the measures practiced by the Indian Election Commission.  If they are not, I will certainly make them aware through coming Parliament meetings.

The key question is really how serious is the EC and the Malaysian government about having free, fair and clean general elections as till today the EC and the government have not adopted many past recommendations made by the Opposition, including the automatic registration of Malaysians as voters upon reaching the age of 21.