Loyal Followers

Tuesday, July 06, 2010

A hook by Minister Hishamuddin; an uppercut by YB KJ and a vodka triple shot by the Federal Court!

I just love my country. Its people. Its leaders. And its Courts.

In one morning, I could shed some tears and I could laugh out loud. Then I could be drowned in a state of disbelief. Jaw-dropping kind of disbelief.

I read three pieces of news this morning.

Firstly, Minister Hishamuddin was quoted by the Malay Mail  imploring Malaysians, particularly "political party leaders" to appreciate the efforts by the "enforcement agencies, especially the police."

Minister Hishamuddin, an UMNO vice-President, was quoted as saying:

"The effort to maintain peace and order in the country continues today by the present security and law enforcement agencies including the police. But the police are often criticised and condemned by society and one was even bitten by a 'wakil rakyat' (elected representative).

If these attacks against the police continue, how can be (sic)  teach about nationhood to the younger generation?"

I agree with him. Credit must be given to the police as and when it is due.

But Minister Hishamuddin should understand that various sections of the society - and this is not limited to political party leaders only - would criticise the police when the police have overstepped their boundary by acting recklessly; or when the police have failed to carry out their duty properly; or when they perpetuate acts of crimes or where they have acted without common decency.

Not all criticisms are justified and I admit that. And some of them are of course politically driven. But surely the police should take proper criticisms on their chin, look at themselves and strive to be better. That is the only hope that the people have.

The police must learn to understand that all the powers that they wield come with responsibilities. The powers are there for a purpose. And when those responsibilities and purpose are not met, or perceived not to be  met, there will be critics.

The critics which the police get however do not negate from all the efforts, the hard work and the commitment, past or present, shown by the police in discharging their duties. I am sure the people appreciate those things.

Just after reading the above news, I stumbled on another piece of news related to the police. Yang Berhormat Khairy Jamaluddin, the UMNO Youth President, lambasted the police for not taking any action to arrest Raja Petra Kamarudin, reports the Malaysian Insider.

He apparently said :-

“Where is the action from the police? Datuk Seri Najib Razak has said the police will be responsible for apprehending Raja Petra. The Inspector-General of Police has said he will get information on Raja Petra’s location, but RPK is going around in public. “Yesterday, RPK was not in hiding; he had attended a Friends of Pakatan Rakyat event in London,”

He continued :-

“Even if they cannot arrest him there, the relationship (between the Malaysian police) and Scotland Yard is there, through the extradition agreement. The British police can arrest RPK and bring him back to Malaysia.

“Are they (the police) unaware, or choose not to know RPK’s movements and location? You have to ask the right questions.

“I want to help the police here."

I really hope Minister Hishamuddin would not take YB Khairy's criticism wrongly. He does have a point to make.

On my part, quite frankly, I do not have a clue why some parliamentarians, leaders and people in authority seem to be obsessed with RPK, his whereabouts, who he is meeting and who is "sponsoring" him. I mean, these topics are even discussed with a certain level of seriousness - which is quite rare, actually - in the Parliament!

On current count, RPK has apparently been sponsored by Kalimullah Hassan; Anwar Ibrahim, Zaid Ibrahim, PKR and Pakatan Rakyat. And I am sure some people think the Zionist and some Jewish movements are also "sponsoring" him.

Isn't there other better and more beneficial things to discuss then who is sponsoring RPK?

I fully understand - and support - what YB KJ has said.

Meanwhile, the Federal Court was not to be left out today. In a decision which is set to "shock and awe" many people, including me, the Federal Court as allowed some clerics from Negeri Sembilan to challenge the constitutionality of a Negeri Sembilan enactment which require the clerics to obtain license to preach Islam, the Malaysian Insider reports.

While the decision is welcome, it makes me wonder what has jolted the Federal Court to suddenly come out with this decision.

The Federal Court's sloth-like willingness to allow any kind of application, appeal or case which challenges any Islamic enactment by any state is well known and is in fact expected by lawyers, litigants and observers.

In matters relating to Islam, it has time and again shirked its judicial responsibility and function by declaring that it has no jurisdiction in matters pertaining to Islam, citing article 121 (1A) of the Federal Constitution.

This unwillingness or reluctance by our Courts (not restricted to the Federal Courts only) is a blight - among many other blights - on our judiciary. It would thus not be out of place to say that judicial activism is a foreign concept in Malaysia.

And so the Federal Court's decision to allow those clerics to raise the constitutionality of the provisions requiring a license to preach Islam is most welcome. It is my opinion that such provisions are repugnant against the freedom of speech which is guaranteed by the Constitution.

The Federal Constitution is also clear on the fact that only the Parliament - as opposed to the State Legislative Assembly - has the power to limit freedom of speech in accordance with the Constitution.

Judicial activism is a hallmark of a vibrant democracy. A most famous Judge, Lord Denning, in Packer v Packer famously said :-

"What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both."

Our Judges should bear in mind what Lord Devlin said :-

"Governments come like water and go with the wind". "The prestige of the judiciary, is the reputation for stark impartiality to be kept up in appearance as well as, in fact. It is not at the disposal of any Government. It is an asset that belongs to the whole nation." 

Justice D.M. Dharmadhikari, an Hounarable Judge of the Supreme Court of India, in a lecture delivered at the Belekar Memorial Lecture Series, organised by High Court Bar Association, Nagpur on August 31, 2002, said :-

"This traditional role of the judiciary is to uphold the law. A constitutional court is expected to discharge constitutional duty to enforce the provisions of the Constitution. In a constitutional democracy, the judiciary is an essential part of the Government and a third source of power. Its function is not merely restricted to deciding impartially the disputes before them in accordance with law. Its more important function may be described as "underpinning the stability of constitutional system and protect it from attacks by resisting attempts to change it."

In far too many instances, I am afraid to say, our Courts have been unwilling to unshackle itself from old and trusted interpretations of the law. New issues are sometime dismissed summarily. When faced with issues which are - for whatever reasons - deemed too sensitive, the Courts quickly cowers within the shadows of article 121 (1A) of the Federal Constitution and shirk its duties and responsibilities. In many more cases, the Courts find no reason to explore new arguments, let alone consider, analyse and dissect contemporary constitutional arguments proffered by Counsels.

In some instances, Counsels are told - with a wave of a hand - to "move on" to other issues. When a decision is made on those issues, they are just dismissed summarily, as if those arguments are not even worth mentioning. All such judgments or decisions are almost always unanimous and to complete the misery, no ground of judgment is ever provided.

It makes us feel that public interest cases are not welcome. That good and current constitutional arguments are not welcome. That the Courts are unwilling to listen. Let alone consider these new and current arguments.

That it is as if there are bogeymen lurking somewhere under the bench of the Courts, giving endless fear to those who occupy the bench.

If so, I would like to repeat Lord Denning's statement :-

"If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both."

 

7 comments:

Anonymous said...

I am not a lawyer but I have this question to ask:
Has there been any judge in the commonwealth other than Malaysia quoted what our judges said in making their decision, just curious.

Curiosity Kills the Cat

kang said...

Art,

Look like nowadays all these people are trying to diverse other important issues like FELDA, government defense procurements etc.

They realize they don't have any chances in UK court to extradite, but they have to made all these stupid statements to be publish by the like of Utusan. AS most of the readers in Utusan are in the rural areas that do not have any internet access. The MSM are their only source of informations.

One of their most famous columnist is the numero uno ultra kiasu Dr. Ridhuan Tee Aldollar.

flyer168 said...

Art,

Another great piece...

"What has destroyed liberty and the rights of man in every government which has ever existed under the sun?

The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate." --Thomas Jefferson to Joseph C. Cabell, 1816.


"The real friends of the Constitution in its federal form, if they wish it to be immortal, should be attentive, by amendments, to make it keep pace with the advance of the age in science and experience.

Instead of this, the European governments have resisted reformation, until the people, seeing no other resource, undertake it themselves by force, their only weapon, and work it out through blood, desolation and long-continued anarchy."
--Thomas Jefferson to Robert J. Garnett, 1824.

Cheers.

Anonymous said...

The people in power have not changed since the days of TM. They are still as arrogant as ever, and still think that we, the rakyat, are stupid. We shall await the next election!

Anonymous said...

the so called cleric just became an umno member. that is why they allowed him to challenged the syariah court.

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Good post though.

dpp
we are all of 1 race, the Human Race

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