Wednesday, 27 August 2008

The return to Parliament after 11 years

I still have my doubts over Anwar, to be honest. He was overwhelming re-elected last nite to represent Permatang Pauh in Parliament. Great results for him. 

But the alternative is UMNO. Once Pak Lah goes, we have Najib. I wont trust him even with my old socks. He has a horrible history of being racists and will say whatever he can to win votes. Just last year he said Malaysia is an Islamic State and there is no such thing as separation of power in Malaysia. And together with his partner in crime, Syed Hamid Albar, he attacked Bar Council for the Forum on Family Law, involved conversion of a child. His attack was immoral, and irresponsible. Suddenly at Permatang Pauh last week, he was reported to say in local papers that Malaysia is a country where the Constitution is supreme. 

The feeling i get with Najib is that seems prepared (hypothetically speaking) to sell his family too, just to stay in power.

Other than Najib, who do we have - Muhyiddin (absolutely not charismatic, and with suspect intelligence), Tengku Razaleigh (too old), Hishammuddin (only good for kissing keris, and lack any courage to do what is right), KJ (is he the gangster of UMNO?)...

So really, even though I am not absolutely comfortable with Anwar, we dont have much choice. I like Musa Hitam, but Mahathir made sure he killed off any chance of Musa coming up, years ago. Looks like, no choice loh... for the moment, support Anwar until a better leader come along. 

I am however very open to be proven wrong by Anwar and hope he will turn out to be a good and positive leader. 


 

Tuesday, 26 August 2008

First Signing


Not a player which will send pulse running up, but finally Everton bought a new addition to the squad.

Lars Jacobsen seems to be a steady defender from what I see in you tube and all. Anyway, things are so bad at Everton, even if Everton sign Azman Adnan, the fans would be happy.

Lets hope more signing coming in.


Sunday, 24 August 2008

Going overboard

Lee Chong Wei won the Olympics silver and all hell broke loose in our political front. 1st, he was flown to Penang via private jet and all to meet Najib. There he was given a mock cheque for RM300,000-00 and also the life payment of RM3,000.

Then the DAP led Penang government gives him Datukship. Yesterday Lee Chong Wei was at the DAP convention and it was reported that he is not interested in politics and asked to be left alone to prepare for the Japan Open in September. 

I respect his talent and was very sad when he lost to Lin Dan. But to give him datukship, and to pass him the mock cheque in Penang right smack in the middle of the Permatang Pauh election is just ridiculous. All politic gimmick. And I though DAP would be bigger than UMNO, but they too jump into the bandwagon, and quickly announced the Datukship award. Really pathetic!

There are other issues we should look at:-

1. That bloody racist school teacher which was conveniently transferred and matter closed. Lim Guan Eng made a defence of that poor girl in Melaka, and he was convicted of Sedition. Here we have a teacher uttering racists comments in School, of all places, and nothing is done to punish this teacher. Hishammuddin remains silent. Perhaps he was too busy kissing his keris, but as Education Minister, he must come out and state that this is wrong. But then again, he himself is a racist man, after his keris kissing antics, so I guess we cant expect much from him. 

I do wonder if a non-malay teacher had attacked the malay race... I wonder what would happen?


2. Talking about racists comments - no action taken against UMNO delegates who were bashing the chinese in the last general assembly.. But then again, our Prime Minister is just too busy taking LRT and Trains. 

I applaud PM's effort to take the train and all. Finally someone from Putra Jaya coming to the common level, but will there be any concerted effort to solve the transport problem? Our country loves to build things but has no clue/ no desire to maintain these buildings/facilities. 


Back to Chong Wei, if we are going to give him Datukship, please award Cheah Soon Kit/Soo Beng Kiang too as they won Silver in Atlanta.

 
 


Saturday, 16 August 2008

Why?

I keep on hearing question on why Bar Council 'loves to talk about Islam'..  'Leave Islam alone' ... etc etc, especially since that Forum on Saturday. 

I am in no way trying to defend the Bar Council, but a look at Section 42 of the Legal Profession Act 1976 states the Object and Powers of the Bar. S42 (a) states that the Bar 'shall' have the purposes listed from (a) to (n).  Sometimes one can hear Council members contending that S42 imposes a duty up them to carry out certain things, like S42(1) (a) which requires the Bar to 'uphold the cause of justice without regard to its own interest'. Or S42(a) (g) where the Bar shall 'protect and assist the public in all matters touching ancillary or incidental to the law'.

The Bar is under a duty to uphold justice for the people of Malaysia. That is clear and unambiguous as per S42 LPA. 

Lets look at Islam in Malaysian Legal context. Unlike other religions in Malaysia, Islam has a special place in our legal annals. Islam is specifically recognized in the Federal Constitution. Examples of Islam in our Federal Constitution :-

Article 3 - Islam is the religion of the Federal Constitution though other religion may be practiced in Malaysia.

Article 11 (4) - The propagation of Islam may be controlled by the States. 

Article 121 (1A) - The jurisdiction of Syariah Court and Civil Court is mentioned here.

Then we have many many State Legislation about Islam, which sees the creation  of the many Jabatan Islams all over the country. These Jabatans are then governed by certain State Laws. 

Basically Islam is the only religion in Malaysia which is legislated upon, and therefore the laws related to Islam is subject to usual rules of interpretation, judicial precedents etc. 

Now, the last I remembered, one of the many functions of lawyers and Judges is to interpret the laws. Lawyers will argue out this interpretations and Judges will decide which interpretation is the better/correct interpretation.

After Subashini's case, lawyers have a problem in trying to interpret the effects of that case. At the Forum, both sets of lawyers from the Subashini's case were invited to discuss this. Subashini and her husband have 2 kids, and one of this child was converted to Islam at the request of the Father who also left Hindusm to embrace Islam. The other child remains a Hindu. 

The wife contended that both parents must agree to a child's conversion as per the words in Article 12 (4) of the Federal Constitution, reading together with Section 5 of the Guardianship of Infant Act 1961. But the Federal Court, per the majority Judgment of Nik Hashim FCJ said this :-

"The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. She said the choice of religion is a right vested in both parents by virtues of arts 12(4) and 8 of the FC and s 5 of the Guardianship of Infants Act 1961.

After a careful study of the authorities, I am of the opinion that the complaint is misconceived. Either husband or wife has the right to convert a child of the marriage to Islam. The word ‘parent’ in art 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent. In Teoh Eng Huat v Kadhi, Pasir Mas [1990] 2 MLJ 300, Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, said at p 302:

In all the circumstances, we are of the view that in the wider interests of the nation, no infant shall have the automatic right to receive instructions relating to any other religion than his own without the permission of the parent or guardian.

Further down, His Lordship continued:

We would observe that the appellant (the father) would have been entitled to the declaration he had asked for. However, we decline to make such declaration as the subject is no longer an infant.

[emphasis added]

Therefore, art 12(4) must not be read as entrenching the right to choice of religion in both parents. That being so, art 8 is not violated as the right for the parent to convert the child to Islam applies in a situation where the converting spouse is the wife as in Nedunchelian and as such, the argument that both parents are vested with the equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband albeit under the Selangor Enactment did not violate the FC. Also reliance cannot be placed on s 5 of the Guardianship of Infants Act 1961 which provides for equality of parental rights since s 1(3) of the same Act has prohibited the application of the Act to such person like the husband who is now a Muslim (see Shamala Sathiyaseelan v Dr Jeyaganesh Mogarajah [2004] 2 MLJ 241)."



With respect, I would like to quote the Eleventh Schedule Section 2 (95) of the Federal Constitution wherein singular words in the Constitution would include plural meaning too. As such the Federal Court's position that any one of a parent, can convert a child without consent of the other parent is incorrect. 

So, there we stand-lah.  

Who is right? Federal Court? Of course we are now bound by Subashini's Federal Court decision, but being bound by it does not mean lawyers must accept it without trying to jump over its flaws and contradictions. Just like the ongoing discussion on the Boonsoom Boonyanit Fedral Court decision, there is nothing wrong at all to discuss about a decision.

The law as it stand after Subashini with regards to the child's conversion is this:-

1. Any parent can convert a child from one religion to another.

2. The effect of No 1 above is that when the conversion involves Islam, the non-muslim spouse who has no right to attend a hearing in a Syariah Court to ask for the cancellation of such a conversion, may have no remedy. 

3. As Islam in Malaysia is the only religion which is extensively legislated, interpretation of that law becomes crucial. How then, do we interpret syariah laws to include jurisdiction over non - muslims?  

4. Even if the law requires a non-muslim to seek remedy at a Syariah Court, is Malaysia a Country which imposes its subject to accept the order of a Court created by law, based on a religion which that person does not subscribe to?

We have a problem in law, and that law happen to have Islam in it. The lawyers have little choice. Whether the law is about Islam or otherwise, if there is a problem about the law, the lawyer has to try find a way around it. Why? One reason is because we need to advise our client on what to do. That is our job. 

I can visualise a non muslim client walking into my office and informing me that the other spouse has converted their child to Islam and asks me what can the client do? 

My answer? 
If I say 'I dont know'.. dont look good.

If I say 'go to Syariah Court to get remedy'.. I am asking someone who is not a muslim to seek remedy at a muslim court. I wonder if I ask a Muslim client to go to Vatican's Court to seek a remedy, would this Muslim Client do so? Hard to say, hard to gauge.

If I say, fight in Civil Court, I am bound by Subashini's Federal Court's case. Unless this Client is willing to take the case all the way to Federal Court again to revisit Subashini's case, this client would have no choice but to go Syariah. 

But there is a problem - under the State Islamic law, the order of the Syariah Court is meant for muslims. How can a non muslim be receiving an order from a Court which this person has no right to receive the order in the first place??  Wont this order be void? 

When you see a red light, you stop driving. When you step into a shop, you know that the shop must sell the item you want at the price listed or pasted on the item. The law sets that. Our lives are certain and consistent, because the law sets the rules and regulations on what to do and what not. 

In Subashini type of case, we dont really know what we can do if a child is converted with only one spouse's consent.

Hence, the Forum last Saturday was about that - the search for the answer, to explore and discover the solution, to find a resolution.

Why the Bar did it? Well, they either have too much time, or they were just trying to carry out it's duties as per S42 of the LPA. Islam was discussed not because the Bar loves to discuss about the religion, but the there is a situation with the LAW of and for Islam. That was the intended discusssion.

Since our forefathers chose in 1957 to make Islam be regulated by law, then these laws have to be interpreted and argued out. I repeat, the discussion is about the LAW and not Islam. If the lawyers dont do that, then who could, who should and who would?  

Sunday, 10 August 2008

The Bar Council Forum on 9.8.08

In Subashini's case, the lady's husband converted to Islam, and one day (without Subashini's presence) converted one of their kids to Islam too. 

Subashini's lawyers at the High Court (and the Court of Appeal and Federal Court too) contended that the conversion of the child was void as the Act involved suggests that both parents must consent to the conversion of the child and not just one parent.

The High Court felt that amongst other issues, this issue is an issue for Syariah Court to decide, and not the Civil Court. So, must Subashini who is not a Muslim, go to a Muslim Court, where she has no locus to appear, to ask for remedy?

That is the issue of discussion for the Bar Council Forum yesterday. 

The Bar Council's Family Law Committee (who were organising this Forum) should have chosen a better name for the Forum, instead of the 'Conversion to Islam' title, but the content and issues at hand was NOT about conversion. The Forum, is about what a mother like Subashini can do in her situation. Hence why the Forum initially saw the speakers from the relevant Syariah Bodies attending; to try discuss and offer solutions. 

But again UMNO-controlled Utusan Malaysia started this campaign that Bar Council is discussing about Islam conversion and attacked Council. Our DPM and his gang on got into the band wagon to politicise this issue. These guys either :-

1. did not read the Bar website properly cause anyone who read it would know that the Forum is not about Conversion, or worst

2. they DID read the website or was informed about what the Forum was really all about; but were irresponsible and/or dishonest in wanting to divert attention away from the Anwar case and lied to Malaysians by attacking Council over what was clearly not the case.    

But this is Malaysian Politicians, just 'bantai' and not give the rakyat the accurate picture of what is happening. Just say what they have to say, in order to gain political mileage and pretend to be hero of a specific community, continuing to divide the country, when they know by dividing us, they stay strong and in power.

The timing of the attack co-incide the Anwar's case. We can see that these guys in UMNO has used this Forum to divert the attention away and at the same time try to force Anwar to say something about the Forum.

Najib and gang first flooded the newspapers and TV news with absolutely incorrect and inaccurate information, telling the public that this Forum is about conversion and therefore wrong.... and then attack Council to the point of causing friction. So, the Friction was actually caused by Najib and gang; and Not Council.

Then we have heroes like Zulkifli Nordin who use to be a Bar Councillor, attending the Forum and causing ruckus, and proudly announcing that he's project to disrupt and stop the Forum was a 'success'.

Malaysia continue to be plagued by irresponsible and self serving politicians, whilst the man on the street are used as pawns in this big chess game.