salam lebaran

selamat hari raya kepada seluruh umat islam di muka bumi ini. mudah mudahan ramadan yang telah berlalu memberikan kita suntikan baru kepada kita untuk berubah kearah kebaikan. Moga dosa dosa kita diampunkan oleh allah dan kita sentiasa diberkati dirahmati dan dikasihani, insyaallah.

Happy Merdeka Day!

Tomorrow, 31st of august we Malaysian will celebrate our independence day. it has been 52 years our country has freed from the colonization. Today, Malaysia has developed rapidly and well known by the world. Our achievements are undeniable and we have become role model in many things. We are now moving towards vision 2020 in attaining the developed nation status.

Since independence we have attained so many achievements. Nearly forty years ago, we moved very slowly. We don’t have enough expertise among Malaysians to help the government in developing the country. We faced many difficulties during that time. May 13 racial riot also has deteriorated the situation and scare us till now. From the past, we learn from mistake. Our government has taken action and did their best to make policies which can ensure our competitiveness in economy for the sake of the people.

Government also is looked concern in promoting the social welfare where the rate of poverty has decreased drastically. The national education policy has succeeded to form intellectual societies. Since 1960, our local universities have born many experts as well. This achievement has undoubtedly contributed a lot for the development in many fields.

The movement to attain independence was very difficult. We face many challenges and tribulations. Some nationalist, leaders, and armies died in their strive to attain the independence. We cannot forget their contributions to free this country and their efforts will be remembered forever. They are willing to do everything. Many nationalists such as Dato’ Onn Jaafar and Tunku Abdul Rahman had led the people to oppose the Malayan Union and made them realize that people in Tanah Melayu want to be independent.

However, we also cannot forget the efforts and contribution of left movement’s leaders during that time. Dr. Burhanuddin Al-Helmy, Ahmad Boestamam, and Pak Sako had strived to free this nation from imperialism. Nowadays, young generations think only Umno strive and led the people to push for independence. But, not only Umno. Before Umno was formed, many associations like API, AWAS, and Parti Kebangsaan Melayu Malaya (PKMM) played important role to increase the awareness of the people about the bad impact of colonization, imperialism and so on.

It must be noted, even the weak become strong when they are united. Therefore, unity will help a lot in the development of economy, social, education system, etc. Today there are many problems, disputes and crisis which plague us. As a multiracial country which lived by 3 main races we face such big challenge in ensuring a better future for Malaysia. Peace and harmony need to be guaranteed. Racial integration must be consolidated and strengthen.

Right now, racial issues and religious issues are still being played especially by politicians. If this happen continuously, our nation is at stake. We cannot prejudice our future. Basically, we don’t have difficulty to encourage unity. The problems appear when it comes to politic. Sometimes differences of opinion cause uncomfortable atmosphere and it makes hard for them to live together.

Independence means not only free from the colonization. it must be defined broadly. Independence also means we are free from corruption, abuse of power, poverty, mismanagement, crime, riot etc. we cannot let this things happen. Independence includes respect for human rights, human dignity and social justice as well. We must uphold the supremacy of the constitution, rule of law and equality before the law.
This country should be governed by law.

We need to comply and respect what has been enshrined in the federal constitution which becomes the supreme law of the land. A truly independence judiciary must be put in place. Besides, the government and the people should also understand the constitution and constitutionalism. We must ensure that the people do not live in fear. Crimes should be prevented seriously. The people should be given freedom subject to limitations provided by the constitution. This is the real meaning of independence.

Happy Merdeka Day!

Right to information and cyber freedom -Part 1

Nowadays, access to information is becoming easier. World now is well known as no boundary. In most developed and developing countries internet is a necessary and without internet people will face difficulties. It is undeniable that internet play important role in managing all businesses in our daily life. It has something to do to form an informed citizenry as well. The access to the internet has widened from day to day and right now people have very wide access to information. Any latest news are kept updated from time to time which enables the people to know what is going on around them. This development also has eradicated the communication barrier where people don’t have to take so much time to convey such information among them through email etc.

Recently, the government proposed to censor websites which contain pornography elements. This suggestion got many reactions from the people. Those who disagree think that the proposal not only restricts the pornographic elements but also the restriction of all materials which harm to the public. This broad definition may include seductive articles or any writing seems to criticize the government. This what they think and in their opinion, the intention of the government is not to censor the porn but to restrict access to political blogs or website. They just use this ground in order to shut the people voice.

This issue deals with freedom of speech and expression. Federal constitution has enshrined this kind of liberty in the article 10. However article 10 needs to be read as a whole together with some limitations. Generally, in constitutional law, freedom of speech and expression is a combination of many rights in many forms. It includes so many things such as communication by word of mouth, signs, symbols and gestures and through work of art and so on. Press freedom is one of them but the constitution silent about this where there is no mention in the constitution about freedom of press and electronic media.

The drafter of the constitution couldn’t foresee the development of cyber technology. That’s why there is no clear provision in the constitution to govern this. But we do have a few acts such as defamation act, sedition act, computer crimes act etc as a guideline. The cyber world has globalized the information and simplifies the way for the access. At the same time, some people abuse this rights by circulating rumors, alleging someone falsely, defaming, reveal confidential and secret things and so on. To what extent the law can cover this scope still remains in question

Permatang Pasir

i think it’s not too late for me to comment on the recent by election. It’s Just a short note. Pas has retained the permatang pasir seat. Even though the majority decrease but they are still the winner. This is expected since the majority previously was about five thousands something. Actually the victory of pas was also contributed with the issue of BN candidate’s disbarment from the legal practice. If this issue not arises, I expect that most probably the majority will be lesser. We could see PAS played this issue every day since the election campaign started. This has affected Rohaizat’s reputation and credibility which implicitly causes the voters to lose their hopes and confidence towards him. What makes me curious is why BN choose that kind of person as candidates. Is he the best choice that BN can put as candidate? we must remember whenever by election is held many people will concern and keep focusing to that constituency to follow on what is happening from day to day until the election day. Every eyes focus to that area and indirectly the election’s result has a big influence towards the voters as a whole. That’s why every political party cannot take it for granted. Since the last GE, Pakatan Rakyat has won 8 times and lost once. BN has been given so many opportunities to restore the public confidence. Seems that they are not really serious in convincing people that they are still relevant. If BN keep losing continuously in other by election next time, don’t get shocked when suddenly a day after next GE, they are no longer in power.

Hudud laws based on constitutional perspectives

Hudud issue is not a new issue. It has been debated for quite long. A few years ago, PAS, an Islamic political party introduced an enactment relating to hudud laws. What actually hudud means? Hudud generally is laws relating to crimes, punishments and rights and duties that are mention in the quran. During PAS’s administration in Kelantan and Terengganu, there are 3 versions of hudud. First, syariah criminal enactment 1993 which contains 72 articles. Second, the bill tabled in 2002, named syariah criminal offences enactment bill (hudud and qisas) containing 74 articles. The last, syariah criminal offences enactment ( hudud and qisas) which contains 67 articles. The state government during this time claimed that they have power to enact such laws. In this writing I will comment on this based on constitutional perspective.

Legally, my stand towards hudud is, it cannot be enacted in Malaysia. Malaysia is a federation comprising 14 states and have dual systems of government, federal and state government. When talking about hudud, we are dealing with constitution and federalism. Malaysia as a federation has strong central government than the regional government. Constitution is the highest law as stated in article 4(1) and any law which contradict with the constitution, state law contradict with the federal law, and any law which is made not within the jurisdiction shall be null and void. All these are provided in our constitution which is the supreme law.

Reasons why hudud cannot be enacted in Malaysia. First, schedule 9 in the federal constitution provides that state legislative has power to make law relating to the punishment and offences by person professing and practicing the religion of Islam against percept of that religion except in regard to matters in the federal list. This means, state has power to make and enact any law but subject to the matters which included in the federal list. Any matters contained in the federal list, the state has no power. In list 1 of the constitution, among matters which included in the federal list, administration of justice, jurisdiction and power of all courts, criminal law and procedure, creation of offences in respect of any matters are in the federal hands.

Federal penal code has made it clear. Any criminal offences like rape, incest, gross indecency, murder, homicide, robbery, and theft are stated in the penal code which is the federal law. This is in accordance with the list 1 or federal list. Let say hudud is implemented in state. We need to deal with the criminal offences which within the federal list but hudud law is law enacted by state. It is clearly unconstitutional. This is an intrusion towards the federal power.

If we look to the list 2 of ninth schedule, syariah court has jurisdiction towards muslims only means person professing the religion of Islam. This has been stated by the court for example in the case of subashini, it was held that non Muslim cannot be brought to the syariah court. That means syariah court has no jurisdiction over non Muslim. If hudud is enacted by state, Muslim offender will be charged in syariah court and non muslim will be charged in civil court. Where is the equality before the law and equal protection of the law?

Next, the syariah law is not naturally provided. It must be derived and subject to the federal law. Refer to the ninth schedule in list 2 clearly provides that sayriah court has no jurisdiction in respect of offences except in so far as conferred by federal law. Syariah courts act 1965 (criminal jurisdiction) is a federal law. The limit of punishment imposed by this act towards the syariah court is it can only sentence maximum 3 years jail and rm5000 fine and 6 lashes. That is why the syariah court can only impose punishment towards offenses such as khalwat, arak, not fasting, missing Friday prayers and etc. The syariah court cannot impose punishment other than permitted by this act. This is the consequences by this limit. Meaning that, any punishment other than these permitted penalties shall be unconstitutional. Hudud law comprises the punishments like amputation of hands, stoning, or death sentence for qisas are outside the permitted limit. So implicitly, it against the federal law and therefore shall be unconstitutional, null, and void.

The next issue aroused is the enforcement of the hudud laws. The question is who has the jurisdiction to enforce such laws? It will cause constitutional dispute when it comes to the enforcement, the arrestment and detention of the hudud offenders. The problem may be settled if the state set up their own enforcement unit. But surely they will seek help from the federal police. Indirectly, constitutional problem will arise since the police’s powers are derived from the federal constitution and federal laws like police act 1967. Lastly, the ninth schedule list 1 of the federal constitution provides that, police, prisons, remand homes, and places of detention are in the federal list. If the state wants to run their own detention centre, it will be outside the power of the state authorities and therefore is submitted unconstitutional.

If we still want to enact hudud laws, we will face so many difficulties. It is not easy to enact. Hudud laws cannot be enacted by state and state needs the help from the parliament to enact hudud. The implementation of hudud in Terengganu and Kelantan has been challenged by Zaid Ibrahim in court but the case was revoked by him. The implementation of hudud can be done constitutionally by amending many provisions in the constitution. That is why it is difficult and to amend since any constitutional amendment needs to get the support of two thirds lawmakers in parliament. This is almost impossible.

Perak Crisis: Whats Next?

The perak crisis continues without solution. When this will end we don’t know. On 11th of may the court ruled that Nizar was the rightful MB. All pakatan’s supporter were happy but that good mood turned bad the day after where the high court decision was suspended while waiting for zambri’s appeal to be decided by appellate court. A week later, the appeal court overruled the high court’s decision and declared zambry as legitimate MB. All 3 judges allowed the appeal. Now, its niizar’s turn to appeal and bring the case to the apex court.

One more time the judicial independence is questioned by Malaysian public. Some pakatan’s supporter said they don’t trust the judges. They only trust the high court’s judge which ruled nizar as rightful MB. Pas vice president said, the situation in the court is much different where we can see many umno leaders there. This situation didn’t happen previously in the high court. It seems, they have already known the verdict. Just being there waiting for the decision to be announced. At this point, I still believe the independency of our judiciary by looking at the judgment. It is not baseless and has strong reasons. We cannot just simply say our judiciary has collapsed. Look at the judgment first before making any stand.

In the high court’s decision, it was held that nizar is still the MB where nothing was done to vacate the MB seat. Vote of no confidence was not made since this is the way to remove the MB. The judges upheld the Stephen kalong ningkan case. The appeal court then held that zambry is the legitimate MB where the court stated that the sultan was correct in appointing Zambry where the sultan had called 28 BN state assemblymen including the 3 frogs and found that Zambry got the majority as MB. There was no express provision in the perak constitution which require the vote of no confidence as the only way to remove the MB. The failure to command the majority can be determined by other means.

But the legal implication by this verdict is the YDPA can remove the prime minister after finding that the prime minister has no longer got majority. The same thing happen to the state where sultan can remove the chief minister. UMNO’S lawyer said the right to choose PM and MB is the ultimate right of YDPA and sutan. This is a great quote where it gives serious implication for the parliamentary democracy. By this decision, does YDPA have absolute power to choose prime minister that he wants? What about if some BN’s lawmakers in parliament jump to Pakatan and then YDPA ask the PM to step down. No need vote of no confidence. Could this kind of thing happen? Definitely not. Is Malaysia constitutional monarchy or absolute monarchy?

Today perak has been plagued with crisis for nearly 4 months. I believe that some of the perakians already getting bored with this situation. I heard so many types of people, academician, lawyers politicians talking about the need to dissolve the state assembly. Nizar, after the high court decision spoke to reporters that he wanted to meet the sultan to get consent to dissolve the assembly.

This crisis began with the political dispute where implicitly cause constitutional crisis. Personally, in my opinion, this cannot be settled through legal channel. It must be resolved through the political way. Sometimes when this crisis is brought to the court it will make the integrity of the legal system is questioned. We are democratic country. Even though not absolute, but basically still democracy. Abraham Lincoln described democracy as government of the people by the people to the people. So give the right to the people to decide. Right now, legally, BN may have majority in the assembly. But it is disputed whether they have the mandate of the people.

This has been such a deadlock. The crisis seems like no end. So why don’t let the people to decide. But it must be noted that even the re election is made, there is possibility that the winning coalition only survive with slim majority and maybe 1 or 2 state assemblymen will cross and cause the same thing again. However that is better than not to dissolve.
Personally, in my opinion if the perak assembly dissolved 3 months ago, all these kind of problems like the action of the speaker to suspend zambri, the issue of the speaker physically removed from the chair will not happen. One more thing, why BN seems so scared to face election. You also got chance to win. I dare to say, BN got bigger chance than Pakatan. You have newspapers published daily, tv channels, internet and whatsoever. BN needs to have self confidence.

I’ve always read in utusan where it was told that BN is still in the heart of the people. Every time by election was made after the 8thmarch GE, it was reported that hundreds of pakatans supporter jump to BN change their party. So don’t make the people think that you are coward. Is BN afraid to lose to the coalition which is described as irrelevant? So, please don’t scare. BN said they’ve got consent from the people to govern. The best thing to prove this is let the people to decide. If BN scared, they are afraid not to get mandate from the voters.

Some people said that holding a re election in perak is wasting the taxpayer’s money. That is the price you need to pay for the democracy to get the mandate of the people. What about the white elephant’s project that is functionless and corruption cases which make our country suffer. Abuse of power and whatsoever even though not proven, but still affect the confidence of the people about the transparency of the government in managing our country.

If this crisis keep continuing, the situation will become worse. It will affect the administration, management of the state, economic and Perakian. We must remember the 3 frogs do not become the member of BN. They only show their support towards BN and enable BN to claim they have the majority. There is possibility that they will cross over again isn’t it? That means their position is not strong. One more thing, the 2 frogs have been charged in court for corruption. If they are found guilty, their seats are vacated and by election will be held. I am worried if they lost, what will happen?

So the best thing is the sultan need to use his prerogative power under the perak constitution to dissolve the assembly in order to settle the political crisis.

Menyemarakkan Gerakan Islam

Islam merupakan suatu cara hidup yang lengkap dengan menggariskan prinsip yang syumul dan menyeluruh yang mentadbir kehidupan seharian manusia. Ini memperlihatkan bagaimana unsur kerohanian itu perlu seiring dengan tindakan manusia. Dalam ilmu ketamadunan, banyak pendapat daripada tokoh sarjana zaman silam mengatakan bahawa perlu wujud keseimbangan diantara pembangunan fizikal dan pembangunan akhlak atau rohaniah. Bekas Presiden Indonesia Mohamad Natsir mengatakan jangan kita ini membangun sambil merobohkan. Ini ungkapan popular yang menjadi sebutan pemimpin gerakan islam sekitar 70an. Konsep sedemikian mempertahankan kekuatan dan keluhuran akhlak sebagai benteng pertahanan mental,umah dan tamadun. Sarjana islam mengupas ungkapan ini dengan maksud mendalam menggambarkan, ekonomi pesat membangun, rasuah dan riba dibiarkan menular tanpa langkah penyelesaian, maksiat dibiarkan bergelimpang menyebabkan darjat umat ditahap asfalasafilin iaitu serendah rendah darjat. Ketidakseimbangan pembangunan dua unsur ini menyebabkan pembangunan tamadun terhalang. Dalam Decline and Fall Of the Roman Empire karya Gibbon seorang sejarawan Inggeris, sebuah kerajaan yang mulanya cukup hebat kemajuan ekonominya kamudiannya bila pemerintahan diganti oleh generasi berikutnya, rasuah menular, kezaliman merebak, dan akhirnya timbul bibit-bibit kelemahan yang menghancurkan tamadun tersebut.Dalam membicarakan soal ini khusus bagi yang muslim, prinsip dan dasar yang ditetapkan dalam islam sememangnya amat lengkap untuk memastikan keseimbangan pembangunan fizikal dan kerohanian. Maknanya, segala tindakan mesti berlandaskan prinsip islam, melakukan segala suruhan Allah, meninggalkan segala larangannya dan mengikuti sunnah Rasulullah S.A.W. jika ini dapat dilaksanakan pastinya segala kelakuan kita akan diberkati dan dirahmati. Dalam soal ekonomi umpamanya, jika ekonomi dibangunkan secara telus, mengelakkan sedaya upaya penyelewengan daripada berlaku, mengamalkan system yang adil dan tidak menindas seperti mengharamkan riba, pastinya ekonomi berupaya diperkasakan. Politik berlandaskan islam seperti berjuang untuk kebajikan rakyat semata-mata dan mengenepikan kepentingan diri, berjuang untuk menentang kezaliman dan penindasan . ini secara tidak langsung berkeupayaan menjamin keharmonian dan kesejahteraan rakyat.Sebab itu, gerakan islam perlu diperhebatkan. Masyarakat islam harus ditekankan dengan konsep akhlak islamiyah dan membangkitkan kesedaran mereka tentang kewajipan muslim untuk menjadikan islam sebagai suatu cara hidup yang lengkap dan addin yang membawa rahmat. Ini bukan soal yang boleh dipandang enteng atau remeh. Usaha ini pastinya sukar melihatkan ‘gelagat’ anak-anak muda masakini. tetapi demi memastikan kesejagatan ummah itu terpelihara, kita tidak punya pilihan. Kita harus singkap dan renung kembali bagaimana rangkaian gerakan islam dari timur tengah termasuk di Indonesia mengatur strategi untuk memperbetulkan akhlak masyarakat yang rendah akal budinya. Bukan berniat untuk meremahkan gerakan islam di Malaysia sekarang tetapi pada hemat saya secara peribadi, ianya perlu diperluas dan diperkasakan. Tindakan kita sekarang akan mencorakkan situasi puluhan dan ratusan tahun akan datang.