Saturday, 24 June 2017

Selamat Hari Raya Aidil Fitri

Salam Aidil Fitri
Maaf Zahir dan Batin
Ikhlas Dari
Eddy Daud

I have not been posting this whole Ramadhan because I was down with severe influenza (ARDS) and had to be hospitalised for 2 weeks. Alhamdullilah, I have recovered from the influenza but will take some time to recover my strength to normal levels. 

Berhati Hati Di Jalan Raya
Malang Tidak Berbau

Monday, 15 May 2017

Finally somebody noticed the elephant in the room

I have my doubts and finally somebody noticed the elephant in the room:

India slams China's One Belt One Road initiative, says it violates sovereignty


'In a strongly-worded statement on the eve of the event, which will see participation of more than 60 countries, India escalated its opposition to OBOR, suggesting that the project is little more than a colonial enterprise, leaving debt and broken communities in its wake.

'We are of the firm belief that connectivity initiatives must be based on universally recognised international norms, good governance, rule of law, openness, transparency and equality. Connectivity initiatives must follow principles of financial responsibility to avoid projects that would create unsustainable debt burden for communities; balanced ecological and environmental protection and preservation standards; transparent assessment of project costs; and skill and technology transfer to help long term running and maintenance of the assets created by local communities.'

'Like Sri Lanka, where an unviable Hambantota port project has left Colombo reeling under an $8 billion debt, Pakistan may be headed in the same direction; Laos is trying to renegotiate a railway project, Myanmar has asked for its own renegotiation; a Belgrade-Budapest railway line to be built by China is under investigation by the EU.'

'Chinese infrastructure projects in foreign countries are typically executed by state-owned enterprises, while financing programmes, which initially appear attractive, sour quickly.'

Read in full here.

Well...I pray that the Malaysia Gomen will be able to pay for all the loans we took from China for the various infrastructure projects namely the ECRL etc. on time and do not end up like Sri Lanka.

Thursday, 4 May 2017

The PM is not a Public Officer? ....a Malaysian Lawyer disagree

'The whole concept of misfeasance in public office in Malaysia has been hijacked by a view so narrow that no misfeasance in public office action can be brought against any member of the administration of the country'

'The court had taken a pedantic analysis of the juridical nature of the Prime Minister’s office. By doing so, the whole concept of misfeasance in public office in Malaysia has been hijacked by a view so narrow, so much so now, as it stands, the law in Malaysia is that no misfeasance in public office action can be brought against any member of the administration of the country'
Azhar Harun, Lawyer

The PM is not a public officer? I respectfully disagree

I must preface this post with a disclosure.

I have known High Court judge Abu Bakar Jais for 35 years. We were classmates in the Law Faculty, Universiti of Malaya. I have no reason to question his integrity. I think he did his job honestly and to the best of his ability. He decided in accordance with what he felt was the correct position under the law.

Justice Bakar ruled on Feb 29 that the Prime Minister was not a public officer, in allowing an application by Najib Razak to strike out a lawsuit against him for misfeasance in public office.

However, I have to respectfully disagree with Justice Bakar on this one.

The thrust of his ruling is this:

a) The main ingredient for the tort of misfeasance in public office is that the wrongdoer must be a public officer;

b) The Prime Minister is not a public officer as defined by our laws; and

c) It follows that the Prime Minister cannot be sued for misfeasance in public office.
The core of Justice Bakar’s reasoning is this:

The Interpretation Act 1967 defines “public officer” to mean “a person lawfully holding, acting in or exercising the functions of a public service”. It further defines “public services” to mean “the public services mentioned in Article 132 (1) of the Federal Constitution”.

He then refers to Article 132(3) of the Federal Constitution. That article indeed says:

“The public service shall not be taken to comprise-

(a) the office of any member of the administration in the Federation or a State; or

(b) the office of President, Speaker, Deputy President, Deputy Speaker or member of either House of Parliament or of the Legislative Assembly of a State”

Article 160 (2) of the Federal Constitution states:

“Member of the administration” means, in relation to the Federation, a person holding office as Minister, Deputy Minister, Parliamentary Secretary or Political Secretary.”

So, it is obvious to the judge that under the Interpretation Act, read together with the provisions of the Federal Constitution, the Prime Minister is not a “public officer”.

Believe it or not, that is the correct position under the Interpretation Act and the Federal Constitution.

However, for the purpose of a claim in a private action for misfeasance in public office, the Interpretation Act and Federal Constitution are not relevant.

The wrong – or in legal parlance, the tort – of misfeasance in public office is a private law and the action brought by Dr Mahathir Mohamad is a private action. 

It is the same as a citizen suing another citizen for an accident. That is a private action under the tort of negligence. This tort is not a written law. Nor is it a branch of actions or claims available under public law.

The tort of misfeasance in public office is established by the Common Law. The Common Law is applicable to all of us by virtue of our Civil Law Act. This branch of laws are unwritten and the principles are derived from judicial pronouncements developed over hundreds of years.

Being so, what is and what is not public office/public officer must be determined by the court in accordance with the Common Law.

I don’t want to go into the technicalities of misfeasance in public office. Suffice if I say that this wrong or tort is about:

“The exercise of power by public official, not for the purpose for which it was given, but for some ulterior or impermissible purpose, knowing or being reckless as to whether it would damage the plaintiff.” (per Hale LJ (as she then was) in her seminal judgment in Ammoo Gottfried v Legal Aid Board (unreported, 1st December 2000).

Lord Steyn said that “the rationale of the tort is that in a legal system based on the rule of law executive or administrative power may only be exercised for the public good”, and Lord Hobhouse said that the tort concerned “the acts of those vested with governmental authority and the exercise of executive powers”.

These are stated in the locus classicus for this tort, namely, a case called Three Rivers District Council v The Bank of England that Justice Bakar himself had referred to in his decision.

At the core of this wrong is not the public office/officer in question. Rather it is the exercise of powers of “those vested with governmental authority and the exercise of executive powers”.

Lord Justice Slade, in Jones v Swansea City Council pointed out:

“It is not the juridical nature of the relevant power but the nature of the council’s office which is the important consideration.”

The court is not supposed to delve into the juridical nature of the relevant power. Rather, what is the nature of the office that is in question.

What is the nature of the office of a Prime Minister?

Is it not about making decisions diligently, rationally and honestly having in mind, at all times, the best interests of the nation and the citizenry, or in short, in the best interests of the public?
That was the question that was supposed to be answered.

Instead, the court had taken a pedantic analysis of the juridical nature of the Prime Minister’s office. 

By doing so, the whole concept of misfeasance in public office in Malaysia has been hijacked by a view so narrow, so much so now, as it stands, the law in Malaysia is that no misfeasance in public office action can be brought against any member of the administration of the country.

In addition, I have to add with respect, there is yet another glaring misapplication of the law by the court in that ruling.

The preamble to the Interpretation Act 1967 that Justice Bakar relied on says:

“An Act to provide for the commencement, application, construction, interpretation and operation of written laws; to provide for matters in relation to the exercise of statutory powers and duties; and for matters connected therewith”.

Section 2 of the Act provides:

“2. (1) Subject to this section, Part I of this Act shall apply for the interpretation of and otherwise in relation to—

(a) this Act and all Acts of Parliament enacted after 18 May 1967;

(b) all laws, whether enacted before or after the commencement of this Act, revised under the Revision of Laws Act 1968 [Act 1];

(c) all subsidiary legislation made under this Act and under Acts of Parliament enacted after the commencement of this Act;

(d) all subsidiary legislation, whether made before or after the commencement of this Act, revised under the Revision of Laws Act 1968;

(e) all subsidiary legislation made after the 31 December 1968, under the laws revised under the Revision of Laws Act 1968.

(2) PART I shall not apply for the interpretation of or otherwise in relation to any written law not enumerated in subsection (1).

(3) PART I shall not apply where there is—

(a) express provision to the contrary; or

(b) something in the subject or context inconsistent with or repugnant to its application”.
Isn’t it obvious, therefore, that the Interpretation Act is only applicable to the interpretation of our written laws?

How could the court then use that Act to define “public officer” when it is actually called upon to adjudicate on a wrong under the Common Law, an unwritten law that is applied in Malaysia? 

Meanwhile, article 132 of the Federal Constitution starts with the following:

“132 (1): For the purposes of this Constitution, the public services are:”

Isn’t it obvious that the provisions in article 132 that the court was relying on are there just for the purpose of the constitution? 

Meaning, those definitions in article 132 are only to be used when other articles in the Federal Constitution make reference to the phrase “public service”.

In other words, the definition of public service in article 132 is not meant for a general application to every law that is applied in this land unless such law clearly imports such definitions.

That is my considered opinion.

Azhar “Art” Harun is a lawyer.

I have read the learned Lawyer Azhar Harun's opinion and I think I support it lah.

Yours truly is of course a part time loyar buruk ;))

Other interesting read:

When the Federal Constitution is overused, it becomes useless

Wednesday, 5 April 2017

The attackers who attacked an MP on Parlimen ground must face the full brunt of the Law

Attack on Parliament grounds: Khalid seeks justice

KUALA LUMPUR: Shah Alam MP Khalid Samad has sought justice from the Dewan Rakyat speaker after revealing that the eight men who attacked him on Parliament grounds were charged today only under the Minor Offences Act.

Those found guilty under this act can be fined not more than RM100 each.

When contacted by FMT, lawyer Salehuddin Saidin, representing the eight accused, said the eight had claimed trial to the charges against them under Section 14 of Minor Offences Act, for provoking breach of peace.

“RM100 is the maximum fine that can be imposed under the Minor Offences Act if the accused is found guilty.”

He denied allegations that the eight had already been fined less than RM100 each.

Salehuddin added the Magistrate Court here had fixed the next mention date to hear the case for May 8.

All eight posted bail at RM500 each with a surety.

Activist and dancer Bilqis Hijjas was acquitted last year by the Magistrate’s Court under the same section for dropping balloons at a shopping mall in September 2015.

Khalid, speaking at a press conference in the Parliament building today, showed the charge sheet from the court containing the names of the eight attackers.

They were Firdaus Tajudin, Faizal Tajudin, Ariffin Mohamed, Erwan Halmi, Azmir Ahmad, Sapiah Sulaiman, Norbaiti Taha and Hasnah Razali.

The first two are believed to be the sons of Pasir Salak MP Tajudin Abdul Rahman with whom Khalid had a verbal spat in the Dewan Rakyat last November.

“The matter is taken lightly because it is seen as a small matter. The Parliament police were also attacked. They have also made a police report, but their report was not taken into consideration.

“I asked the AG (Attorney-General) to look into the case in a fair manner. This (happened) on Parliament grounds. Where is the logic (to charge them under Minor Offences Act)?” 

Continue reading here.

My comments:

Tuesday, 28 March 2017

I am a Muslim living in Johor Bahru, Peninsular Malaysia and I am opposed to RUU355

I am a Muslim living in Johor Bahru, Peninsular Malaysia and I am opposed to the RUU355 for it will divide the Blessed Malaysia that I know and God knows we are already divided enough by race and religion. 

For PAS Hadi who think that sins can be wiped out by severe deterrent sentences on earth, I tell you Islam is a compassionate religion, educating Muslims to be kind and knowledgeable people is the way to a better life on earth and the hereafter.

Pivotal role for Sabah, Sarawak MPs over Hadi’s bill
March 28, 2017

From the long-term and macroscopic perspectives, the strategy to exclude the two states has unreservedly exposed the shortsightedness of our policymakers.

The government’s takeover of the bill to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) is being watched closely by the whole nation.

Now, it has been revealed that to manage the frustration among East Malaysians and the non-Muslim community in the country, the government’s version of the bill will only be applicable to Muslims in the peninsula.

The bill to amend Act 355 was originally tabled by PAS president Abdul Hadi Awang, who is also Marang MP, but was later taken over by the government.

Hadi’s private member’s bill in Parliament last year was meant to pave the way for the eventual implementation of hudud in the future, posing a severe threat to our vulnerable secular system. As such, it was strongly opposed by non-Muslims in the country as well as the people of Sabah and Sarawak.

We need to illustrate the point that not all Muslims in this country are agreeable to Hadi Awang’s motion although most of the dissident voices have come from non-Muslims and East Malaysians.

The adoption of the bill to amend Act 355 in the Dewan Rakyat will require more than just the support of Umno and PAS lawmakers.

As such, MPs from Sabah and Sarawak will play a very pivotal role in the success or failure of this bill.

Excluding Sabah and Sarawak from the bill would somewhat allay their fears and remove any excuse to oppose the bill. Therefore, it is perceived as one of the strategies to win the support of these MPs from the two Borneo states.

The problem now is that such a divisive measure could further alienate the East Malaysians and polarise the people.

It cannot be denied that the exclusionary policy is one of the most effective strategies to remove the obstacles to the passing of the bill to amend Act 355. But from the long-term and macroscopic perspectives, the move has unreservedly exposed the shortsightedness as well as recklessness on the part of our policymakers.

Once the bill is adopted by Parliament, Muslims in Malaysia will be divided into two different groups – those in Peninsular Malaysia will be subjected to the amended Act while those in East Malaysia will not be affected.

This is obviously illogical and contrary to the principle of fairness. The rift between people on both sides of the South China Sea will be further accentuated as a result of “one county, two systems”.

The argument behind the amendment to Act 355 lies with its religionisation advocacy and the detrimental effect on our existing secular system. It is imperative that East Malaysian MPs scrutinise the bill at the national level instead of looking only at its implications on the people in Sabah and Sarawak.

They must realise that once the floodgates are opened, anything could happen.
The amendment to Act 355 will have a tremendous impact on the future of this country. The attitude of East Malaysian MPs – whether they just sit on the fence and watch or register their strong and unbending opposition for the sake of this country – will be instrumental in the development of this whole thing.

Sin Chew Daily is a local vernacular publication

I hope the Johor Bahru Memeber of Parliament and other Muslim MPs understand what his/their constituents wants.

Tuesday, 21 March 2017

What will happen next to Forest City?

How China’s overseas property dream turned into a nightmare

Capital controls mean people who signed up for flats in Malaysia cannot send money from mainland

...............However, capital controls introduced by Beijing have turned the dream of a Malaysian property into a nightmare for many mainlanders.
Read in full here.

Monday, 6 March 2017

China’s growing domestic involvement - Dennis Ignatius

'It’s not about being anti-China but about being pro-Malaysia. It’s not about being opposed to good relations with China or being against Chinese investments; it’s about ensuring that relations with China do not come at the expense of our independence and sovereignty.'
Dato' Dennis Ignatius

Rather interesting article written by a former Malaysian Diplomat on the rising influence of the PRC in Malaysia's affair. 

I have copy pasted this article from Dato' Dennis Iganatius blog:

China’s growing domestic involvement

Saturday Mar 2017
Posted by Dennis Ignatius in China, Malaysia

Even the most casual observer of our nation’s politics will not fail to notice the growing influence of China in our national affairs. Not a day goes by when reports of some new investment, some new deal, some new initiative by China doesn’t make headlines. Suddenly, China is everywhere and not in a small way.

Dominant economic partner

China is already Malaysia’s dominant economic partner – it is our second largest export market, is increasingly critical to the health of our tourism industry (4 million Chinese tourists expected this year), our education sector (10,000 Chinese students currently studying in Malaysia), and the sustainability of our oil palm industry.

It will soon come to dominate our ports and railways as well as our housing and construction sectors. With the purchase of 1MDB-related Edra Global Energy Bhd. assets, it also became the second largest independent power producer in the country.

In the next decade or so, it is estimated that China will invest, lend and spend at least half a trillion ringgit on infrastructure, property development and other projects across Malaysia. Never has our country seen this much money pouring in from a single source in such a relatively short space of time.

Manna from heaven

Many, particularly those who stand to profit most from this new relationship, welcome China’s growing involvement in our country. To them, it is, of course, a once-in-a lifetime bonanza, manna from heaven, an unparalleled opportunity to make millions. They assume that what is good for them is automatically good for the nation as a whole.

Consequently, many of our political leaders and business tycoons are falling over each other to sing China’s praises and highlight the benefits of the blossoming relationship. To them, China is a great friend, a powerful benefactor, a genuine economic partner, a benign political power. And they can’t seem to get enough of China.

The dangers of asymmetrical relationships

However, the sheer asymmetrical nature of the relationship as well as the enormous political and economic leverage that China now wields cannot but be cause for concern.

And yet, concern is the one word that is missing from the lexicon of our relations with China. In our rush to embrace China’s largesse, we are being wilfully negligent of the political, economic and security implications.

It is surely axiomatic that as China’s stake in Malaysia increases, China will be more proactive in our domestic politics if only to ensure the continuity of parties, personalities and policies that favour China.

Malaysia, is in fact, far too important to China now to be left to the vagaries of Malaysian politics and the caprices of the local electorate.

Open endorsement of UMNO-BN

 The clearest indication of this is China’s increasingly open and forthright endorsement and support of the UMNO-BN government, the most pro-China government we’ve ever had. In fact, it can be argued that China’s grand strategy vis-à-vis Malaysia is, in many respects, contingent on UMNO-BN remaining in office.

It should therefore come as no surprise that we are now seeing Chinese diplomats not only attending local party political gatherings but also accompanying UMNO-BN politicians to political events and on constituency visits.

Last year, for example, the Chinese ambassador accompanied Defence Minister Hishamuddin Hussein, MCA Deputy President Wee Ka Siong, and MCA assemblyperson Teoh Yap Kun on visits to Hishamuddin’s Semborong parliamentary constituency and Teoh’s Paloh constituency.

Since then Chinese diplomats have been spotted with MCA Vice-President Chew Mei Fun in Raub (where she is rumoured to be the candidate in the next elections), with MCA Youth chief, Datuk Chong Sin Woon in Nilai, with MCA President Datuk Seri Liow Tiong Lai when he officiated the opening of a meeting of the Federation of Hakka Associations, and with Gerakan President Mah Siew Keong in Teluk Intan.

And this is likely only the tip of the iceberg as many other visits go unreported.

During these visits, Chinese diplomats routinely take the opportunity to praise the Najib Administration, stress the importance of the MCA and press the point that the Malaysian Chinese community has a lot to gain from the relationship with China that is now being developed.

The Chinese ambassador has also urged Malaysian Chinese to support the MCA because without the MCA, “Malaysian Chinese have no say in the government.”

Champion of Chinese education

Having cast himself as ‘lord protector’ of the Malaysian Chinese community during the Petaling Street affair in 2015 and knowing the great importance Malaysian Chinese attach to Chinese education, the Chinese ambassador has now positioned himself as a champion of Chinese education in Malaysia.

He has tirelessly criss-crossed the country, often accompanied by MCA and even UMNO politicians, visiting dozens of Chinese schools and distributing hundreds of thousands of ringgit in assistance and scholarships. He has also promised to initiate a teacher-training programme that could see PRC teachers in our schools.

MCA/BN – China alliance

China’s unequivocal message to Malaysian Chinese, therefore, is that they must support the emerging MCA/BN-China alliance if they wish to safeguard their rights, preserve Chinese education, have a strong voice in government, profit from business with China and ensure that relations with their ancestral homeland remain strong.

It is, as well, an exhortation to Malaysian Chinese to put aside their resentment and distrust of both UMNO and MCA and vote BN for the greater good of both countries.

Clearly, if this shrewd political strategy succeeds, the main losers will be the DAP.

But such is the power and influence of China in our domestic affairs that even the DAP has now been forced to moderate its hitherto principled opposition to the sheer lunacy of some of the China-related projects and make peace with the Chinese ambassador.

All that this has accomplished, however, was to vindicate, in the eyes of DAP supporters, the MCA’s collaboration with China.

The MCA, for its part, increasingly behaves as if it is but an extension of the Chinese embassy rather than a member of the ruling coalition. It recently established a PRC affairs committee as well as an OBOR centre and does more to promote OBOR than the Chinese embassy itself. Some would argue that these actions make the MCA the main vehicle of PRC influence and propaganda in the country today.

Unchallenged and unchecked

And yet, these clear and troubling manifestations of foreign political interference in our domestic affairs, in contravention of established diplomatic practice, go unchallenged. That it is being done with the connivance of local political leaders does not make it any less troublesome.

One can only wonder how the UMNO-BN crowd would react if the Australian or American ambassador urged Malaysians to vote for the opposition if they wished to safeguard their democratic rights.

Once this door is open, there is no telling where it will lead to.

UMNO-BN politicians make a big fuss over trivial things like the paltry sums given to a few NGOs to promote free and fair elections by the Open Society Foundation but think nothing of facilitating a far more insidious form of foreign interference that threatens to undermine what’s left of our democratic process.

Hijacked elections?

The question now is how far China will go to protect its interests in Malaysia. Will PRC money come into play in the next elections, taking money politics to new heights? Will the upcoming elections be the first elections in Malaysia when a foreign power will be actively working behind the scenes to influence its outcome?

The next general election is already shaping up to be one of the most critical we’ve ever had. The very future of our country is at stake – whether we will remain a secular democracy or not, whether corruption and cronyism will triumph over transparency and good governance, whether our constitution itself will survive in its present form.

Certainly, too much will be riding on these elections for us to allow a foreign power to hijack them for its own purposes.

And any political party which comes to power with China’s help will undoubtedly be subservient to China’s interests. What is at stake, therefore, is not just the sale of critical infrastructure assets but possibly the sale of the country itself.

A nation at its lowest ebb

The fact that China is knocking on our doors at a time when our nation is at its lowest ebb renders us particularly vulnerable.

We are today a nation more divided than ever before – not just Malay against non-Malay but Malay against Malay, Chinese against Chinese, Indian against Indian. It’s Muslim against non-Muslim, rural against urban, rich against poor.

Nearly 60 years after independence we are still arguing bitterly about language, citizenship, education, religion and race while decades of racial and religious manipulation have left us wary and suspicious of each other.

We are so untrusting of each other that we’d rather depend on foreigners than work together to find solutions to the pressing problems we face; we are so busy fighting each other that there’s literally no one to guard the front door.

In the meantime, corruption and the abuse of power have rendered our national institutions and our political processes weak and dysfunctional, unable to provide the checks and balances, the steady hand, the careful and impartial analyses, the proper legal and regulatory framework that is a prerequisite for national resilience.

When we find ourselves in a situation, for instance, where suddenly almost every single port in the country needs to be massively expanded with Chinese money or that we suddenly need not one but three, and perhaps four, expensive railway systems built by China, we have to wonder whether projects are now being driven by economic necessity or pure greed and foreign pressure.

Malaysia First

Many will, of course, dismiss these concerns as alarmist or reject them as anti-China or anti-government rhetoric.

China’s growing influence in our domestic affairs cannot, however, be easily dismissed.

It is alarming and Malaysians ought to be deeply, deeply concerned.

At the very least, we ought to have an informed discussion of what is going on so that we understand all the implications and consequences and ensure that policies and projects serve the national interests rather than undermine them. It is simply much too important an issue to be left to vested interests to decide behind closed doors.

It’s not about being anti-China but about being pro-Malaysia. It’s not about being opposed to good relations with China or being against Chinese investments; it’s about ensuring that relations with China do not come at the expense of our independence and sovereignty.

It is most assuredly not about the loyalty and commitment of any of our own citizens or about marginalizing the very real concerns they have but about ensuring that a foreign power does not exploit our internal divisions to its own advantage.

As well, this isn’t about being pro-West or pro-China but about ensuring that no country – east or west – dominates us to the point where we lose our ability to chart our own destiny.

And if standing up against corruption, mismanagement, the abuse of power, the lack of transparency and the deliberate neglect of vital national interests makes one anti-government, than so be it.

The greatest challenge

If China turns out to be unique among the big powers for its beneficence, munificence, generosity and respect for smaller states, well and good; but if not, then at least we’ll be better prepared to face the challenges ahead.

Our nation now faces one of the greatest external challenges it has ever faced. The dangers are real. The stakes are high. There will be no winners save the corrupt, and a foreign power, if we fail to successfully manage this great challenge that lies before us.

[Dennis Ignatius | Kuala Lumpur | 4th March 2017] Read in full here.

Thank you Dato' for writing  this very important article, 
Let us Malaysians be aware and be prepared to face future challenges.

Tuesday, 28 February 2017

If you are sick who do you see? a doctor lah

So you think you know all the answers eh?

If there's something strange in your neighborhood
Who you gonna call? (ghostbusters)
If there's something weird
And it don't look good
Who you gonna call? (ghostbusters)

I ain't afraid of no ghost
I ain't afraid of no ghost

If you're seeing things running through your head
Who you gonna call? (ghostbusters)
An invisible man
Sleeping in your bed
Who you gonna call? (ghostbusters)

I ain't afraid of no ghost
I ain't afraid of no ghost

Lyric source here

If you are sick
who do you see
(a doctor)

if an airplane needs to be flown
who do you call
(a pilot)

if you seek a Attorney General 
who do you find
(a lawyer or judge)

So who do you call if you need a New Auditor General?

Monday, 20 February 2017

Sejauh mana anda memahami Hudud (re RUU35) ?

Hope my readers will give this a good read on the RUU355, it will be worth your while:

Satu forum yang telah dianjurkan oleh Angkatan Amanah Merdeka Malaysia (AAMM) bertajuk 'Sejauh Mana Anda Memahami Hudud' di Dewan Rumah Kelab Persatuan Alumni Universiti Malaya (PAUM) pada Ahad 12 Februari 2017 dimana forum tersebut telah menyaksikan beberapa hujahan yang menyokong dan juga menentang RUU355.

Antara panel forum tersebut adalah; Mufti Perlis Dr Mohd Asri Zainual Abidin, Pensyarah Undang-undang Universiti Teknologi Mara (UiTM) Profesor Dr Shad Saleem Faruqi dan juga Pensyarah Universiti Sains Malaysia (USM) Profesor Dr Ahmad Fauzi Abd Hamid.

Presiden PAS Abdul Hadi Awang sebelum ini telah membentangkan Rang Undang-Undang (RUU) Persendirian Pindaan Kuasa Dewan Rakyat bertujuan meminda Akta Mahkamah Syariah (Bidang Kuasa Jenayah) 1965.

PERLIS Mufti Datuk Dr Asri Zainul Abidin spoke bluntly at a recent forum on religion.

“Gossiping is a big sin in Islam but are there (syariah) laws against gossiping? Do you see the religious authorities sending officers out to haul up those who gossip?’’

He points out that while some things are haram (forbidden) and sinful in Islam, that does not mean that Allah demands for all of these to be punished in a court of law.

In the case of adultery, for example, he says, if there are only three witnesses of good character present and not four as required by the religion, the adulterer would have to be let off.

“Not all sins have to hauled up to court. The religion doesn’t ask us to go and check up on people, from room to room or car to car, asking for their surat nikah (marriage licence) to find out if they are married or not.’’

Citing another example, he says, a powerful and rich person who commits a crime might be able to afford a good lawyer who cleverly argues the case and gets it thrown out of court.

“But that doesn’t mean that because they got away with it in a court of law, they will get away with it in the Court of the Hereafter. God knows everything.

“Muslims believe we will be tried for all our sins. Drinking alcohol, adultery, stealing are all sins. When we die, we will have to face God and answer for whatever we did. There is no escape.’’

Dr Asri was speaking at the “How Much Do you Know About Hudud” forum organised by Angkatan Merdeka Malaysia.

Touching on PAS president Datuk Seri Dr Hadi Awang’s motion before Parliament for the amendments to the Syariah Courts (Criminal Jurisdiction ) Act 355 (popularly referred to as RUU355), Dr Asri said there are concerns it is all part of a political game.

Dr Asri stresses that while the Quran and Sunnah (tradition of the Holy Prophet) are divine, the interpretations are not.

He points out that while hudud (Islamic Penal Code) is mentioned in the Quran and Sunnah, it is not spelt out in great detail with regards to the context and conditions.

So it was left to scholars to deliberate on these.

“Scholars do not always agree so they have different interpretations of things. So which interpretation should you favour? These are not divine.’’

On RUU355, Dr Asri says, the politicians supporting it keep saying it is not the hudud.

“If it is not hudud, then surely we Muslims are allowed to criticise and give our views. So why is it that whoever criticises RUU355 is labelled as going against Islam? How is it that if you oppose the amendments you are said to oppose Allah’s Laws?

“And what are Allah’s Laws? Does it mean that if you increase the penalty for an offence from RM5,000 to RM100,000 that it now becomes Allah’s Law?’’

Dr Asri says even within the country, there are differences from state to state in the way Islamic matters, including polygamy, is dealt with, “so we must be very careful about calling something ‘Allah’s Law’.’’

For him, discussion and debate are essential when looking into the dimension of punishment, because it is not only about implementation but also the conditions, the context, and suitability.

He points out that in the Quran, there is a verse, Surah Al Anfal, which talks about the spoils of war and how they should be distributed, with fighters entitled to their share of them too. But he points out that this is not implemented today, because even though it is in the Quran, the wars of today are different from those in the early days; and soldiers now are paid salaries and allowances.

“Defending the country is jihad (a noble struggle) but we don’t hear any political party in the country asking for a spoils of war law to be implemented because the context in today’s world is different.’’

In a jibe at PAS, he says, “tens of years ago’’ they used to label other Muslims who were not with them as “infidels’’, they described the Federal Constitution as a “Jahiliyah” Constitution (Constitution of Ignorance) and warned Muslims against wishing non-Muslims during their religious festivals because for them that was tantamount to leaving the Muslim faith.

But, he says, PAS has backpedalled now on what it said previously and today it says it upholds the Federal Constitution.

“Allah’s Law should never be politicised. It is difficult when political parties come in and play a role in what they deem is Islamic law.

“When religion is politicised, the discussion is no longer fresh and not the sort that can stimulate rational thinking and a healthy discourse.’’

Dr Asri questions: Why do Muslims have a mentality that says, in order to be Islamic the hand of someone who steals has to be amputated?

This kind of mentality is wrong, he says, adding that these kinds of Muslims understand Islam in a closed-off, secluded and non-holistic manner.

“It is like the IS (Islamic State) mentality, where they think of only punishing and not about developing the place.’’

For him, it is wrong to give the world the impression that justice in a Muslim country is served “when we cut off the hands of those who steal, whip those who commit adultery and punish those who drink alcohol’’ and that “this is what showcases the beauty of Islam’’.

Dr Asri says Islam is all about better welfare for the people, spiritual development, strengthening family bonds, and ensuring peace and harmony in society.

And he points out that the Government has already taken action to do a number of these, such as building schools and universities and giving people an education, which is something sought by the religion.

He says there are many things which could have been brought before Parliament, such as how to inculcate the beauty and mercy of Islam into education and the economy.

“But in tens of years in parliament, they (PAS) never even brought these up and focused instead on labelling other Muslims infidels, and having two imams during prayers (because they refused to be led in prayers by an Umno imam).”

He points out that Muslim countries with renowned scholars such as Egypt, Kuwait and Qatar have never discussed implementing hudud, and countries like Pakistan, Sudan and Nigeria that tried to implement it have stopped, because in today’s world, people and conditions are different.

He also says that in Islam there should never be double standards in implementing a law.

“I fear that a person who steals a car will get his hand amputated but a nobleman who steals millions will not get his hand amputated.’’

He questions what such a thing would do to the fabric of society and the image of Islam.

Dr Asri says if a Muslim faces amputation for a theft and non-Muslims do not, that would not help create harmony and peace within society because there are two sets of laws for the same crime.

He fears if such laws are enacted and implemented in an unjust manner, it will cause Muslims to leave the faith.

“Muslims don’t need this right now.

“There are many other issues that we should be looking into, such as the issue of good governance, the environment and corruption. We should also be looking at issues that help women, such as expediting divorce cases, because there are a number of cases where women in the midst of getting a divorce are left hanging for years without their cases being resolved. I think all these matters should be sorted out first otherwise people will feel that Islam is unjust to women.

“For me, if the amendments to RUU355 are not going to result in good, let us postpone them and focus on our priorities.’’

Read in full from TheStar here.

IT has been quite a busy week for those interested in the issue of amendments to the Syariah Courts (Criminal Jurisdiction) Act 1965, commonly referred to as RUU355.

The week started with a “How Much Do you Know About Hudud” forum last Sunday with eminent speakers and people from both sides of the divide giving their views. On Thursday, retired Court of Appeal judge Datuk Mohamad Ariff Md Yusof gave his views in a lecture at the Law faculty in Universiti Malaya (UM). And yesterday, those in support of and those against RUU355 held their separate rallies on the issue.

At his talk at UM, Mohamad Ariff said he has no doubts the amendments to RUU355 that PAS president Datuk Seri Hadi Awang put before Parliament in November are constitutional – but he has reservations about them because he fears abuse.

“Yes, they can do it constitutionally. But should it be done the way it is being done? No! I believe the upper limits are simply too high,’’ he says.

Hadi is proposing the fine for syariah offences be hiked up to a maximum of RM100,000 from the current RM5,000; the jail sentence be increased to 30 years from the present three years; and the number of strokes in whipping be allowed to go up to 100 instead of the current six.

For Mohamad Ariff, the current limits are already very high. He says, for instance, religious authorities are able to fine someone teaching religion without certification RM5,000 in some states and RM3,000 in others, which is already very high.

“What else do you want? Imprisonment for 15 years? What do you require a jail sentence of 30 years for? Or whipping? You don’t whip someone for teaching without a tauliah (accreditation)!’’

“If you don’t approach this in the right way, it can lead to all kinds of abuses.’’

Mohamad Ariff cited the case of an MP (Shah Alam MP Khalid Samad) who went to a surau to deliver a talk about the plight of people suffering in Gaza at the invitation of the surau: the religious authorities in the state went after him and (the Klang Lower Syariah Court) fined him RM2,900 for “teaching without accreditation’’.

“He was there to give a talk by invitation! And now this poor MP is going to lose his Parliament seat. This is a lesson to highlight this entire problem. You can create offences in the Syariah Court and increase upper limits but if you don’t approach it properly and you don’t have the right people to apply it, it can lead to all kinds of abuses.’’

(Under Article 48 of the Federal Constitution, an elected representative will lose his seat if he is convicted of an offence and fined RM2,000 or more, or receives a jail sentence of a year or more).

Mohamad Ariff also pointed out that when the maximum fine is low like at present and capped at RM5,000, the discrepancies for the offences are not so great from state to state.

“But if you have a RM100,000 limit, you can imagine what can happen!”

For him, it is just not logical to argue that there is a need to increase the upper limits by such a huge quantum solely on grounds that the Syariah Courts have been neglected all this while and need to be upgraded to the level of the Civil Courts.

He points out that the Civil Courts have to deal with the Penal Code and all kinds of offences, while the Syariah Courts have only limited jurisdiction.

And he says that the Federal Constitution makes it clear that the Syariah Court cannot encroach into areas covered by civil law and the Penal Code.

He believes the framers of the Federal Constitution would be simply “aghast” at what is happening with regards to syariah law and the direction the country is taking.

So, he says, civil society and “politicians of saner minds” should really ask for the justifications for the amendments to RUU355 and ask why the fines and punishments have to be so high?

“Don’t simply vote in favour of it just because it is constitutional.

“I have a feeling they (those pushing for the amendments) can’t justify it.’’

Mohamed Ariff notes that there is already some overlapping of criminal offences in the Penal Code with syariah law, for example laws regarding sodomy.

When there is such an overlap, he says, the offence under syariah law is probably invalid because the offence should be tried under the Penal Code.

“We have all the expertise, all the prosecutors necessary, the judges and everything else that can do justice. Can you trust the same to be done in the Syariah Courts?’’

He praises the Syariah Court for being good in dealing with family law.

He says it can improve its efficiency in dispensing justice in the areas of marriage, family and the inheritance laws of Muslims, “which are the staple of syariah personal laws of Malaysia, rather than being too preoccupied with imposing the harshest punishments for syariah criminal offences’’.

At the forum earlier in the week discussing “How Much Do you Know About Hudud’’, constitutional law expert Datuk Dr Shad Saleem Faruqi said, according to the law, Syariah Courts have powers over offences that are against the “precepts” of Islam but “sadly’’ the Federal Constitution doesn’t define what these precepts of Islam are.

“So many states are abusing their power by treating anything they like or don’t like as a precept of Islam.

“If you question a fatwa (religious edict), no matter how respectfully, that is a criminal offence. If you give a discourse on Islam without a tauliah (credentials) that is against the precepts of Islam.

“I don’t know which Islam we are talking about. It is not the Islam I was born into and not the Islam I practise. This is an attempt by some to arrogate a monopoly of power to themselves.’’

He says some of the religious laws the states are passing are being done very unthinkingly, citing as an example the law that stipulates that speakers need credentials from that state to be able to speak on religion.

“So if a lecturer gives a talk to a class on Islamic law, I am not sure if it is legal any more because they would need to be bertauliah (accredited by the state).’’

He says the tauliah law states that people can only discuss religion with their family at home.

“So if I am in a car with my family on the way to Kota Baru, I cannot talk about religion because that is not my house. Or if I am at home and someone by chance visits me, then I cannot talk because it is not just my family any more.

“This kind of law is unthinking and needs to be reviewed. It makes us look like fools! I don’t know how the law even got through!’’

Dr Shad says that syariah law is not a blank cheque for states to do whatever they want with in regards to religion, stressing that the power of states to punish Islamic crimes is subject to Federal control and must be conferred on the states by Federal law.

Which means that despite the Kelantan State Assembly passing the Kelantan Syariah Criminal Code Enactment (1993) and the amended Kelantan Syariah Criminal Code II (2015), the state cannot carry out punishments such as stoning, crucifixion, execution, or amputation because these are outside its jurisdiction.

For him, the Syariah Courts are supposed to punish offences that are relatively minor in nature such as khalwat (close proximity), drinking alcohol, abuse of halal signs; also, syariah offences must not be matters already in the Federal list.

“But unfortunately, most states are trespassing on the Federal Constitution by punishing crimes like homosexuality, incest, participating in lotteries, betting, and gaming which come under Federal law.’’

Dr Shad points out that some civil judges do not seem to know the Federal Constitution and they abdicate their responsibility to interpret and enforce the law whenever there is even “a smallest whiff of Islam”, even though it is clearly stated that when it is a matter concerning a Muslim and a non-Muslim, it has to go before a Civil Court because a non-Muslim is not eligible to go to the Syariah Court.

“Barring a few honourable exceptions, our courts get cold feet whenever there is an issue of Islamic law. They bend over backwards to expand the horizon of the power of the syariah parties.’’

Dr Shad believes that Hadi’s private member Bill is “clearly a clever attempt to revive the Kelantan Criminal Code II which has been lying dormant because of constitutional hurdles’’.

Saying that the punishment must be proportionate to the offences committed, he points out the penalties in Hadi’s motion calling for 100 lashes, 30 years jail, and a maximum RM100,000 fine are for some crimes that are victimless.

“If someone drinks, if someone doesn’t say his prayer, or doesn’t fast, there is no real harm to national security and public order.

“Some of the punishments in the Penal Code are lesser (for more serious crimes). But for not saying your prayers you can get 30 lashes!’’

He says experts in Islam will tell you that there is a difference between sin and crimes, and that not every sin needs to be criminalised – “This law (RUU355) tends to do that (criminalise every sin).’’

He says as this is a matter of national importance, it would be quite in line for the Malay Rulers as the heads of religion in their states to discuss the law and give direction.

Saying that he is all for genuine dialogue, Dr Shad notes that while the Quran is divine, the interpretations are human.

“As a student of law I have to say there is no word that is not capable of multiple interpretations. Those of us who are Muslims have a duty to paint our religion in the best possible light. So if there is an interpretation that is available that is kinder, gentler and more merciful, what’s the harm in trying to promote it?’’

(Dr Shad writes the fortnightly Reflections On The Law column in The Star.)

Read in full from TheStar here.

Saturday, 18 February 2017

Tak logik lah kalau semua salah Uncle Kit kan?

Artikel ini diambil sepenuhnya dari blog saudara

Semua isu-isu yang timbul sejak Dato' Seri Najib menjadi Perdana Menteri dan Menteri Kewangan tidak melibatkan Lim Kit Siang. 

Apakah isu-isu tersebut? 

1. Lim Kit Siang tidak mencadang atau menyokong pengenalan GST yang membebankan rakyat jelata.

2. Lim Kit Siang tidak mencadang atau menyokong keputusan menghapuskan subsidi sehingga naik harga barang dan toll.

3. Lim Kit Siang tidak mencadang atau menyokong kenaikan harga minyak petrol dan diesel.

4. Lim Kit Siang tidak pernah bersetuju untuk menggunakan wang KWAP untuk melabur dalam perniagaan atau perusahaan yang tidak menguntungkan.

5. Lim Kit Siang tidak pernah dirundingi untuk menukar surat hak-milik tanah peneroka Felda yang sangat bernilai dan tidak turun harganya dengan sijil saham yang tidak menentu harganya dan kini harga sahamnya merudum turun kerana dilanda kerugian.

6. Lim Kit Siang tidak pernah menjadi perajurit dalam angkatan tentera dan tidak tahu menahu mengenai Lembaga Tabung Angkatan Tentera; beliau tidak terlibat dalam keputusan menggunakan wang tabung LTAT untuk membiayai projek yang tidak menguntungkan. 

7. Lim Kit Siang tidak pernah pinjam duit Mara untuk berniaga atau sebagai biasiswa waktu beliau belajar; beliau juga tidak pernah merestui penyelewengan yang kini dikatakan berlaku dalam MARA.

8. Lim Kit Siang belum memeluk ugama Islam dan beliau tidak pun tahu mengenai salahguna wang Lembaga Urusan dan Tabung Haji untuk pelaburan yang merugikan. 

9. Lim Kit Siang, kerana belum memeluk ugama Islam, tidak pernah membayar zakat itulah sebabnya dia tidak tahu bahawa pejabat ugama mengadakan lawatan ke Paris sebagai salah satu acara dalam 'Kursus Pernikahan'.

10. Lim Kit Siang bukan seorang Melayu/Bumiputera dan dia tidak merasa penderitaan, dan bukan sebab kepada penderitaan, maka biasiswa anak-anak Melayu dikurangkan jumlahnya oleh kerajaan. 

11. Bukan Lim Kit Siang yang menamatkan khidmat Peguam Negara.

12. Bukan Lim Kit Siang yang menukar pegawai MACC kerana menyelidiki kes yang melibatkannya.

13. Bukan Lim Kit Siang yang mencadangkan dikenakan label OSA atas semua hasil penyelidikan atas sebarang salahlaku dalam apa jua syarikat, badan dan agensi kerajaan.

14. Bukan Lim Kit Siang yang menghalang Bank Negara Malaysia dari mengambil tindakan atas penyelewengan dalam institusi kewangan  dalam dan luar negara.

15. Bukan Lim Kit Siang yang mencadang untuk membeli kapal selam Scorpine; dan bukan dia yang suruh Sirul dan rakannya untuk membunuh Altantuya.

16. Bukan Lim Kit Siang yang suruh SPRM untuk menyelidik dan tangkap perasuah-perasuah kecil supaya perasuah yang lebih hebat kelihatan tidak rasuah.

17. Bukan Lim Kit Siang yang mengarah media perdana supaya setiap hari mengutuk Tun Dr. Mahathir walaupun beliaulah yang telah mengharumkan negara Malaysia di zaman pemerintahannya selama 22 tahun menjadi Perdana Menteri.

18. Lim Kit Siang tidak pernah terbabit dalam sebarang skandal seks.

19. Lim Kit Siang tidak pernah terlibat dalam sebarang skandal kewangan. 

20. Lim Kit Siang tidak menjadi pengeluar filem lucah di Hollywood dengan memakan belanja wang yang disalurkan dari syarikat milik negara.

21. Lim Kit Siang tidak pernah melabur wang negara yang dicurinya di Singapura, Hongkong, New Zealand, Switzerland, United Kingdom, Amerika Syarikat dan namanya tidak pernah disebut sebagai penjenayah dalam mana jua mahkamah didunia. 

22. Lim Kit Siang tidak pernah merancang untuk membawa 1.5 juta rakyat dari Bangladesh sehingga rakyat Bangladesh melebihi jumlah rakyat keturunan India yang ada dalam negara sekarang ini.

23. Lim Kit Siang juga bukan perancang untuk membenarkan ratusan ribu Cina dari negara Komunis China untuk membeli harta milik tetap (freehold) dan tinggal di negara ini.

24. Lim Kit Siang juga tidak boleh disalahkan jika harta-harta yang sangat bernilai seperti Lapangan Terbang Sungai Besi dijual kepada syarikat dari negara Komunis China.

25. Lim Kit Siang tidak boleh disalahkan jika kos pembangunan satu-satu projek, seperti keretapi di Pantai Timur dinaikkan harganya sehingga Negara terhutang sejumlah yang sukar untuk dibayar dari hasil projek berkenaan.

26. Lim Kit Siang menyokong RUKUNEGARA dan tidak pernah menentangnya.

27. Lim Kit Siang menyokong dan tidak pernah menentang PERLEMBAGAAN. Justeru itu, Lim Kit Siang turut mendaulatkan RAJA-RAJA MELAYU, Lim Kit Siang menyokong BAHASA MELAYU SEBAGAI BAHASA KEBANGSAAN. Lim Kit Siang menyokong ISLAM MENJADI UGAMA PERSEKUTUAN. Lim Kit Siang menyokong HAK ISTIMEWA ORANG-ORANG MELAYU DAN BUMIPUTERA, walaupun Lim Kit Siang tidak menegur apabila Hak Istimewa ini tidak dinikmati secara keseluruhan bangsa Melayu/Bumiputera.

28. Lim Kit Siang menyokong serampang dua mata DASAR EKONOMI BARU iaitu untuk MEMBASMI KEMISKINAN dan MENYUSUN SEMULA MASYARAKAT, tetapi Lim Kit Siang menegur apabila terlalu ramai orang Melayu dan kaum-kaum lain yang masih ramai kekal miskin dan Lim Kit Siang juga menegur apabila peroses menyusun semula masyarakat tidak mencapai matlamat kerana cara pelaksanaannya. 

29. Lim Kit Siang tidak bertanggungjawab, malah tidak tahu menahu mengenai penubuhan 1MDB; tidak pernah menjadi penasihat atau ahli lembaga pengarah, pegawai atau pekerjaa di 1MDB. 

Oleh itu, patutkah Datuk Zaid Ibrahim untuk takut berkawan dengan DAP dan berjuang menentang rasuah dan ketidakadilan bersama mereka? 

Alangkah baiknya jika ramai pemimpin Melayu seperti LIM KIT SIANG.

Salahkah Tun Dr. Mahathir Mohamad untuk bergabung tenaga dengan Lim Kit Siang, dan mereka yang sejenis sikap dengannya,  untuk sama-sama menentang penyelewengan, rasuah dan pengkhianatan kepada negara?

Salahkah Tun Dr. Mahathir Mohamad untuk membetulkan kesilapannya kerana telah salah menanam budi dan memilih pengganti2nya yang beliau tidak sangka menjadikan negara dipandang hina seperti sekarang dan rakyat jelata menderita kerana beban hutang negara yang bertimbun dan tidak mungkin selesai dibayar oleh anak, cucu dan cicit kita semua.  

(Artikel diatas adalah sebahagian tulisan terbaru Tan Sri Sanusi Junid yang dipetik daripada blognya, - SH 18/02/2017)

Yup, tak logik lah kalau semua salah Lim Kit Siang kan, kan, kan?