| Contributed by Ambiga Sreenevasan | |||||||||||||||
| Tuesday, 09 December 2008 05:39pm | |||||||||||||||
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The Bar Council calls first for an urgent and immediate public inquiry to be held into the incident to investigate the recent tragedy and make recommendations for further action. Members of the inquiry panel should include reputable persons, State representatives, and independent experts such as engineers, geologists and housing planners together with representatives from NGOs. The powers of the inquiry should be wide enough to cover a review of all hillslope developments and to receive complaints from residents of affected areas. There have been several important suggestions made in the press by Derek Fernandez (see Malay Mail of 9 December 2008) that ought to be implemented. In our view, the following immediate steps are imperative:
Of course, the public has a right to know why these steps were not taken sooner. There is a distinct lack of real action in public safety issues in developments, despite the Highland Towers disaster and despite the public outcry and concern over such similar developments since then. Every time the public has objected to projects that are precarious, even to the naked eye, their voices are drowned out and these developments continue regardless. On our part, the Bar Council has set up a task force to monitor the situation with a view to finding solutions and offering suggestions to the Government on legislation that may have to be considered, much like the legislation in Hong Kong. This task force will be headed by Council member Roger Tan, who will be assisted by Derek Fernandez. The Bar Council also urges the Government to repeal the statutory immunity to local authorities and their officers in the Street, Drainage and Building Act 1974 as this militates against the interests of the public and only encourages a lackadaisical attitude to the approval of plans submitted. Putting profits before people must cease. It is time that the Government adopts a “rights-based approach” towards protecting the peoples’ rights to sustainable development and environmental protection. These are acceptable norms that ought to set the benchmark in our drafting of planning laws and implementation of development policies. Further, those that approve development plans and those that are duty-bound to protect our environment and the people must be called to account. Their acts may amount to criminal negligence which the police ought to investigate. It is hoped that this tragedy, unlike the Highland Towers incident, will not fade into the past with no lasting solutions. The authorities must be serious and must immediately bring in tough, no-nonsense measures. Tragically however, for those who have lost their loved ones, friends and homes, these steps will come too late. Dato' Ambiga Sreenevasan President Malaysian Bar 9 December 2008 | |||||||||||||||
Tuesday, December 9, 2008
Statement on Bukit Antarabangsa: Don't put profits before people
The appalling and unnecessary loss of life in Bukit Antarabangsa on Saturday calls for an immediate and comprehensive response by the Government.
Thursday, December 4, 2008
Judicial Method And the Example of Owen Dixon
By ©Dato' Cyrus Das
Sir Owen Dixon’s thirty-five years on the High Court of Australia is often spoken of in mythical-terms due probably to the accolades he received from the greats like Justice Felix Frankfurter of the US Supreme Court and English Law Lords like Simmonds and Denning, as the greatest exponent of the common law of his generation.
The recently released biography of Owen Dixon by Philip Ayres (The Miegunyah Press, Melbourne) brings to the fore the outstanding judicial qualities of Dixon that transformed the Australian High Court during his tenure as Chief Justice (1952-1964) to one of the leading courts in the common law world.
The outstanding quality of Dixon, as emerges, was his judicial conduct on the bench – his conduct towards his brethren inter se and to counsel appearing before the court. He had inherited a fractured court where disharmony prevailed. It was known to all then that Justice Starke did not speak to Justice McTiernan and Justice Rich did not carry his load (Dixon helped him with his judgments, if not, wrote some of them).
Dixon found among his first tasks to establish a working and cordial court. Ayres does not say much of it other than to observe that under Dixon’s leadership ‘the tone of the Court was generally excellent’ and the judges conducted themselves ‘with amiability one to another’. But Dixon obviously led by his intellect and with a keen understanding of what an apex court is all about.
Dixon’s thinking is found in his collected papers entitled ‘Jesting Pilate’ (the title is taken from the rhetorical question Pilate posed to Our Lord ‘And What is Truth?’) rather than Ayre’s work.
Although the Chief Justice is primus inter pares, Dixon says ‘the court is a cooperative institution; the position of the man who presides differs very little from that of any other judge. Perhaps he receives a little more attention from the Bar than he deserves because he announces the conclusion of the court first, but all my judicial experience tells me that a man’s influence on the court does not depend on where he sits’.
Another significant area where Dixon’s leadership was felt was the Court’s demeanour towards Counsel arguing before it. Dixon was very opposed to the practice at the time when he was at the Bar when the Court conducted an inquisition and cross-examined counsel in every case. Dixon said: ‘when I came to the Bench I had formed a conviction that it was not a desirable one. I felt that the process by which arguments were torn to shreds before they were fully admitted to the mind led to a lack of coherence in the presentation of a case and a failure of the Bench to understand the complete and full case of the parties, and I therefore resolved, so far as I was able to restrain my impetuosity, that I should not follow that method and I should dissuade others from it’ (Jesting Pilate).
Ayres records an incident when Dixon expressed open displeasure to his brethren at Justice Taylor’s excessive interruption of Counsel’s arguments. Taylor had interrupted incessantly during a hearing and arguing with counsel destroying any sequence or utility in the arguments. When Taylor remarked later that counsel was either stupid or incompetent, Dixon replied testily: ‘Counsel’s position was made very difficult, and he did not deserve such disparagement; to follow his argument we should listen’.
Justice Menzies who sat with Dixon for many years observes of Dixon’s style. He would not want to argue with counsel but ‘if Dixon thought counsel appearing before the Court was in substantial trouble – either by overlooking an argument or not doing an argument justice – he would, perhaps, five minutes before the Court was due to rise, say ‘Mr. So-and-So, perhaps there is nothing in it, but I wonder whether you might like to take into account such-and-such (or whether the case of X v Y is relevant, or whatsoever), I think we shall adjourn now’, and the Court would arise’.
On assuming office as Chief Justice, Dixon expressed the view that there was no more important contribution to the doing of justice than counsel presenting to court what a case is all about, and when it is done with ability and character ‘in my opinion (it) makes a greater contribution to justice than the judge himself ’ (see Jesting Pilate p. 246).
Bacon had said centuries ago that a much-talking judge is an ‘ill–tuned cymbal’ but it had done nothing to diminish the pervasiveness of the problem as seen in other courts as well where the legal culture allows writing about it. Justice Scalia of the U.S. Supreme Court, known for interruptions and sometimes for even a bullying interruption of oral arguments, once drew this audible remark from the mild Justice Powell: ‘Do you suppose he knows the rest of us are here’ (Alan Dershowitz, Supreme Injustice p.250).
In Dixon’s view the status of the judiciary is first and foremost the responsibility of the judges themselves. He said: ‘The respect for the courts must depend upon the wisdom and discretion, the learning and ability, the dignity and restraint the judges exhibit’ (Jesting Pilate p. 249).
It might be fitting to say something about his theory of ‘complete legalism’ in relation to some of the great and controversial cases that came before the Court like the Communist Party case and the Bank Nationalisation case 79 CLR 497: ‘close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’ (Jesting Pilate p. 247)
The ‘business of judging’ (to borrow the title from Lord Bingham’s collection of speeches) is bound to be more difficult in the years ahead as greater and more controversial cases come before the courts. Adherence to ‘complete legalism’ may be the answer to fend-off accusations of ideological or other indicators of partisanship but it would be a mistake to read the method as sanctioning a literalist approach to judicial decision-making. A judge who passively interprets the printed words of a statute without regard to its setting achieves little other than to establish himself as an interpreter of statutes. In a recent lecture at the BIICL (53 ICLQ 274), Lord Cooke of Thorndon identified four (4) cases that changed the common law. They were Salomon v Salomon & Co Ltd (1897) AC 22 (separate corporate personality); DPP v Woolmington (1935) AC 462 (golden thread on burden of proof); Hedley Byrne v. Heller (1964) 2AC 465 (negligent misrepresentation); and, Anisminic v Foreign Compensation Commission (1969) 2AC 147 (ouster clauses). None of these cases would have made their mark if the judges were, to use Lord Woolf’s words, ‘reactive’ rather than ‘proactive’ (2004 2 CLJi).
In particular, Anisminic see Re Racal Communications Ltd (1980) 2 ALL ER 634 at 638g revolutionised public law in the common law world. Lord Diplock’s acknowledgement is all the more significant because as Diplock LJ he was overruled in Anisminic a fact he took in good grace saying he was decidedly wrong and the House of Lords was decidedly right. Anisminic which had to deal with a ‘no-certiorari’ clause in a statute would not have made the mark if it were decided by judges with a literalist bent of mind. Its’ immense contribution to the rule of law by checking on bureaucratic abuse of power is felt everyday.
It is entirely possible that Dixon’s doctrine of ‘complete legalism’ would not sit comfortably with the remarkable growth in judicial review in later years as reflected in cases like Anisminic, supra, or even Mabo (No. 2) (1992) 175 CLR 1 in Australia that reversed 150 years of established law on aboriginal land rights. The Dixon approach was the archetypal doctrine of judicial restraint. It was good in the sedate years when society was more homogeneous and less in ferment and rights-based jurisprudence had not yet taken root everywhere. But the modern judge deals with legal problems presented by a rapidly changing society and the conflicts that spring from multi-cultural societies. In such cases Judges would be required to find the most just and fair solution. It helps little in such circumstances to discuss the divide between judicial restraint and judicial activism. In the hard cases that now come before the courts it is apposite to hearken to the words of another great Australian Judge, Justice Michael Kirby, who rightly emphasised community expectation of the judiciary as the important consideration rather than judicial method: ‘Of Judges, the community expects detachment, honesty, integrity and learning. Increasingly, it also expects efficiency…Prejudice and partiality have no place in the judicial function’. (Kirby, Through The World’s Eye, Sydney 2000 p. 108). On this grundnorm both Dixon and Kirby, albeit of a different era, would be completely in agreement.
Morality and Ethics v Invasion of Privacy by Shamrahayu A. Aziz
MORALITY AND ETHICS V INVASION OF PRIVACY*
©Shamrahayu A. Aziz**
I. INTRODUCTION
The debate between moral policing and invasion of privacy has started a long time ago and it will never end. Nonetheless, it has to be mentioned at the outset that the debate has no place in Islam. Islam accepts morality as part and parcel of its teachings[1].. In Islam, breach of morality in the form of ma’siah or sins may be penalised though there may not be any form of worldly punishment prescribed by the Quran or Sunnah. In this respect, the state is bestowed with a power to criminalise actions or inactions contrary to the integral parts or fundamentals of the religion by creating ta’zir offences[2]..
“Morality” is conformity with recognised rules of correct conduct, or a character of being virtuous or a system of duties or ethic[3].. Ethics is a set of moral principles concerning the principles of right and wrong behaviour and the goodness or badness of human character[4].. Morality is generally not a formal system. It does not depend on how “rules” are stated. It neither has any formal rule of evidence. Nevertheless, once a moral rule is codified as a rule or law, it has to be followed. This is an accepted notion in Hebraic and Greek law, whereby following the law – divine or man-made law – is part of the highest morality, though divine law is regarded as more superior than man-made law[5].. Morality in this respect is not only religious morality, but includes the social and cultural standard of morality expected to be possessed and professed by each and every individual in the society.
Ethics in modern acceptance has, to some extent, a formal set of rules set forth to govern certain conduct or behaviour, such as theLegal Profession (Practice and Etiquette) Rules 1978[6].. Morality and ethics connote the acceptable standard of conduct or behaviour in a society. Both seem to be similar yet, in modern application they are not in all circumstances the same. The former has a wider scope but has no formal rules, whereas the latter is normally applicable to a particular sector and it is set out in a more formal manner.
“Invasion of privacy” means, unjustified intrusion into one’s personality or intrusion into one’s personal activity. Intruder to privacy is subject to legal action – civil or criminal[7].. This meaning connotes individuals’ personal freedom, where one shall decide for himself of what is good and what is bad.
Before we proceed to the substance of the debate, it is pertinent to confine the meaning of the title. It is perceived that the possible meaning of the topic is that “enforcement of morality and ethics through law is an invasion against the right to privacy or the right to personal freedom”, which include the issue of “conflict between the power of the state to criminalise breach of morality and the right of individuals to personal freedom”. The following discussion is delivered on this proposition, atempting to highlight and discuss the possible arguments in favour of the state to legislate on morality and arguing that morality should continue to exist in the Malaysian social and legal realm. It begins with a brief reflection on the relationship between morality, law and religion.
II. MORALITY, LAW AND RELIGION – A BRIEF REFLECTION
As mentioned above[8]., morality is defined as conformity with recognised rules of correct conduct. The ‘recognised rules’ connote the rules acceptable to the community where one belongs to – whether it is in the form of law or religion – as both, in their own competency provide for ‘rules’ to be adhered to. Thus, it can be said that religion is reflected in the moral values and laws of the society. Both, law and morality meet at one end that is religion.
Lord Denning was quoted to have the belief that religion and law are one and the same. In one occasion, Denning said, “Many people think that religion and law have nothing in common… People who think that have got a wrong idea both of law and of religion…”. According to Denning, law seeks to see that truth is observed and that justice is done between men. What is truth and what is justice is not the product of one’s intellect, but of his spirit. Spirit is the creation of religion from where right deeds would flow[9].. At this point, according to Denning, religion and law meet.[10]. In another occasion, Denning said that morality is rooted in religion, whereby both are inseparable and can never be alienated from law[11]..
Denning’s opinion is consistent with a famous dictum in Taylor’s Case which declared Christianity as part and parcel of the English law and thus criminalised acts inconsistent with the religion[12].. In this respect, law and religion are inseparable.In the same vein, St Thomas Aquinas, the most significant contributor to the development of naturalist theory in the Middle Ages, believed that law is essentially a moral phenomenon[13]., which implies that law is to suit to the society. It is also naturalist’s argument that human nature was a divine creation that would make decision based on the nature of the society that he is living in. Aquinas believed that God is the source of authorities and all human laws must conform to the law of God[14].. Any tyrannical law or law inconsistent with the law of God is not law in its actual sense[15]..
The relationship between morality, law and religion in England before the crisis of secularisation or the renaissance to separate religion from the state, was exactly as what had been declared in Taylor’s Case – religion or Christianity was the basis of law. At that moment of time offences against moral was subject to Ecclesiastical Court, the Court which had the jurisdiction to try offences against religion and also offences against moral[16].. The process of secularisation had caused the downfall of the Ecclesiastical Court[17].. Following the crisis of secularisation, the society started to depart itself from Christianity and abandoned their religion and religious conscience. This can be seen in the debate between Lord Patrick Devlin and Professor H.L.A. Hart, the well-known Hart – Devlin Debate. The debate would not arise if the society had not abandoned Christianity.
This Hart – Devlin Debate is mainly on morality or homosexuality in particular, and law relating to personal freedom in England. It began in the 1950s due to rigorous enforcement of law against homosexuality that led to a number on high profile arrests and trials[18].. The publication of Wolfenden Report on 3rd September 1957[19]. had clearly disregarded the relationship between morality, law and religion. The Report recommended that “there must remain a realm of private morality and immorality” that is “not the law’s business”[20].. It proposed that consensual homosexual relations in private should not be criminalised. This report gave rise to two conflicting approaches in the subject that is obvious in Hart – Devlin Debate.
Lord Devlin viewed that society is integrated and subscribed to a common morality. Public morality is good and so valuable that all other goods should sacrifice for its sake[21].. Devlin proposed that society is sanctioned with the right to pass judgment on all matters of morality, especially those necessary to society. Devlin allowed the use of law in order to preserve morality as destruction to public morality is disastrous to the society[22].. Devlin’s argument had shown, to some extent, the relationship between law and morality, though he had not made any reference to the role played by religion in homosexuality.
In his response to Devlin, Hart agreed that erosion to one of the dominant morality in the society is a threat to the society. He however, qualified his view by requiring that the threat must be beyond a mere challenge to the society’s code of conduct. Hart argued that a proof of empirical evidence is necessary in establishing a true threat to the society. In homosexuality, according to Hart, there was no empirical proof of its treacherous nature. Hart, as Devlin did, had not considered any religious foundation in his argument on the permissibility of homosexuality.
Despite that, Devlin and Hart agreed that moral erosion is dangerous to the well-being of a society. Nonetheless, Devlin emphasised on the effect of the erosion to the intangible aspect of a society, such as understanding and tolerant, whereas Hart’s emphasis was on the society’s physical aspect[23].. In this respect, it is relevant to state that in every civilization, there are two important aspects that build up its perseverance; one is the physical development and the other is the spiritual force. The physical development can physically be seen and it is touchable, such as buildings and factories. The spiritual aspect may well be on eyes set, but it is untouchable – such as politeness, good manners, respect, tolerance, patience and so on[24].. Concerning homosexuality, it has clearly become a threat to the society, especially when there is scientific proof that it spreads HIV/AIDS, a desease which so far, has no cure. Many have died or are dying from AIDS. This is yet to count how much money that government and tax payers have to spend for the treatment of HIV patients and how much sacrifice that the family has to give to them and to take care after them.
The position of morality in Islam is obvious and unquestionable. As mentioned earlier[25]., Tawhid (the Oneness of Allah), Shariah (the law of Allah) and akhlaq (morality) are the essentials of Islam. These three essentials of Islam are inseparable and will never change. Each of them must constantly co-exist in order for Islam to be al-deen, the perfect way of life. Morality therefore, forms the integral part of Islam. The sources of authority in Islam, such as the Quran and Sunnah, have given comprehensible illustrations to the position of morality (akhlaq)in the religion[26].. The Quran brings mankind to the way that is most upright, which is conformable to ethical rectitude and beneficial to man’s individual and social life[27].. Verses 22 to 37 of surah al-Isra’ can be described as among the moral precepts founded in the Quran. The verses declare, to the effect that mankind are to worship Allah, be benevolent to their parents, be kind to relatives, the needy and wayfarer, be wise in spending, do not be stingy, stay away from zina[28], not to do shameful deeds that may bring them near to evils acts, be kind to orphan, not to take orphan’s property without due cause, be true in promise, be precise in measuring, do not do anything that one has no knowledge and do not be arrogant and act arrogantly[29].. The Quran condemns the odious evil doers[30].. The Quran may be said as a code for regulating human life as it provides the guidelines or morality to be observed by men in conducting their affairs and dealings with all the creatures.
Since the religion functions as to direct and regulate all aspects of the affairs in life with ethical norms, it has been described as a “legalistic” religion[31].. The description, in this context, is acceptable as Islam has detailed out all the rules in human ethical affairs, either through the verses in the Quran or the hadith of the Prophet (SAW). The Prophet (SAW) was reported to have said, which means that, the finest act of a son is to be good to his parent and righteousness is to have good morals and vice is what rankles in the heart[32].. The Prophet (SAW) also said, which means, men who break the ties of brotherhood shall not enter paradise[33].. In another hadith, the Prophet (SAW) said, which means, feeling of jealousy is prohibited and mankind are all brothers[34].. A guide to ethical relationship between men is illustrated in a hadith of the Prophet (SAW) which means, it is unlawful for Muslims that he should keep his relations estranged with his brother beyond three days[35].. In another hadith the Prophet (SAW) has clarified the ethical behaviour of men, that means, avoid suspicion, for suspicion is the gravest lie in talk and do not be inquisitive about one another and do not spy upon one another and do not feel envy with each other, and nurse no malice, and nurse no aversion and hostility against one another. And be fellow brothers and the servants of Allah[36].. The Prophet (SAW) has also mentioned the ethic in commercial transaction, which means, do not grudge and do not bid him out for raising the price and do not nurse aversion or enmity and do not enter into a transaction when the others have entered into that transaction and be as the fellow-brother and servants of Allah[37]..
To summarize, Islam is a perfect way of life, which moulds one’s life with the principles of individual and social behaviour through divine revelation and it does not precinct the private life of individuals alone[38].. But with the Western domination, Muslims have come to forget many aspects of their religious teaching[39]., separating morality from religion is one of them. Even the movement to secularise religion has gone farther to deny the existence of God[40]..
Where do we, Malaysians, stand on the issue of morality, religion and law? Where are we heading?
III. MORALITY AND PERSONAL FREEDOM IN MALAYSIA
The debate on enforcement of morality in Malaysia inflamed only in these recent years. The incident that sparks the debate is none other than the enforcement of Shariah decency law[41].. Most debate thus far, is focused on Shariah decency law, rather than the issue of morality in general. It must be noted that Shariah is not the only law enforcing morality and decency in the country.
Morality is deeply rooted in the Malaysian society. A Malay proverb says, “hidup dikandung adat, mati dikandung tanah” (in life one is surrounded with customs, after death one is surrounded with soil). Another proverb, “biar mati anak, jangan mati adat” (it is better to loss a child than to abandon a custom). Custom or adat, by definition is the accepted conduct or behaviour in a society and it has the force of law[42]. and customs are closely related to moral values which are parts of public morality of Malaysians[43].. Morality and custom have the same root – that is religion, Islam or otherwise. Morality and custom are traditional and indigenous to the Malaysian social and legal system.
It must be mentioned that the first vision of the nation in Wawasan 2020 (Vision 2020) is to have, among others, a developed nation which is persistent in moral and ethics values[44].. Furthermore, the observance of decency is enshrined in the fifth pillar of Rukun Negara[45]., the Malaysian national ideology[46].. Though Rukun Negara does not seem to have a binding legal effect, it has been acknowledged in a number of cases. For instance, the court recognised significant role of Rukun Negara in the system and dismissed the application to enforce a judgment against a gambler as gambling is
injurious to public welfare and it is against the pillar in Rukun Negara[47]..
In the Malaysian legal history morality, law and religion are interrelated. This is obvious in a Malay proverb, which says, “adat bersendi hukum, hukum bersendi syarak”, (custom stands on law, the law stands on Shariah). Another Malay proverb that gives a similar implication on the relationship is that, “adat bersendi syarak, syarak bersendi adat” (custom stands on Shariah and Shariah stands on the custom). As being preserved in Malay proverb, the principles contained therein may be regarded as forming part of the traditional and indigenous Malaysian philosophy and ideology that should not be abandoned only for the sake of a ‘change’ or ‘renaissance’. It shall not be bent to conform to the so-called universal standard of personal freedom, as there is no such ‘universal standard’ in all matters. Samuel P. Huttington argued in his “Clash of Civilizations” that there is no ‘universal standard’, including in matters regarding human right[48].. The states themselves shall determine the standard in governing the nation. In the same breath, the European Court of Human Rights, while deciding on the grounds of restrictions to freedom of expression guaranteed by art. 10 of the European Convention on Human Rights and Fundamental Freedoms 1950, expressed the view that it is up to the individual states to adopt and to apply any limitations to freedom of expression[49].. By analogy, morality thus, should be measured according to the standard of each society by taking into consideration the history, legal or otherwise, and the circumstances in a particular state, such as the custom, religions and social structure. The so-called universal standard of human right or personal freedom in particular, may not be suitable to our local society.
From constitutional law point of view, it must be mentioned that Islam is the religion of the Federation[50].. To declare Islam as the religion of the Federation is a clear indication that morality should be assumed to have significant place in the Malaysian system – legal or social. This is because Islam, as mentioned earlier, accepts morality as one of its essentials. The constitutional status of Islam may be accepted as a tacit proof that Islam is the accepted ideology of the nation[51].. Having said that, it is thus reasonable to suggest that rules regulating morality demonstrated in Islamic teachings is acknowledged as the main criterion in deciding matters concerning morality, so long it does not interfere with the adherents of other religions to practice their religions. As for the Muslims, they have no choice but to adhere to their personal law, the religion that accepts morality as one of its essentials. In this respect, the ‘integral test’[52]. in Fatimah Sihi[53] is relevant. In applying this test to issues pertaining to morality, it must be proved that certain act is against the integral parts of the religion. Integral parts means, necessary parts that would make the whole religion complete. As mentioned earlier, Islam is a religion that stands on three components – tawhid, shariah and akhlaq – which are complementing each other. These three components must always co-exist. Lacks of any of it would make the religion incomplete.
One may argue that to make Muslims be subjected to their personal law of morality is discriminatory against Muslims by virtue of art. 8 of the Federal Constitution. There are two simple answers to this argument. The first is because Muslims are bound to follow their religion. This first answer would lead to the second answer, whereby the discrimination is not unconstitutional. This is because the Constitution itself, by virtue of Clause (5)(a) of art. 8 allows a classification be made on the ground of personal law.
Having the above discussion in mind, it thus follows that, in observing morality Muslims are bound with their personal law. Therefore, there should not be the so-called ‘personal freedom’ in morality.
Personal freedom has been accepted as among the supreme freedom in a democratic society[54].. It connotes the right to speak and the right to do whatever one wants to. In the context of our discussion, (whether enforcement of morality is against invasion of privacy) the precise idea behind privacy is that men should be given a space for himself and his god – that there should be an area inaccessible to anyone, including the state, except god. Morality thus should be protected and preserved. At the same time, in any democratic country, personal freedom must be given a space.
The importance of privacy is not denied. Albeit, personal freedom is not always absolute, it is subject to restrictions to be imposed by the state. Hart and Devlinin their debate agreed that erosion to morality may bring harm to the society. They differ only in the end result – the prohibition of homosexuality.
While men are complex set of selves, they are integrated into a whole, as JJ Rousseau’s famous saying in his Social Contract, “Man is born free; yet everywhere he is in chains”[55].. This statement connotes that it is impossible for man to stand alone. Everywhere he goes he is chained to the society where he belongs to. Agreeing that, we must draw a line, in the form of legislation, between what is private and what is public. This line shall depend on the time, place and circumstances that may include the religious and social values accepted in the place.
Although man has reason, he must be guided through law in order to fulfill his potential as a creature of God and the law must take a coercive form[56].. After all, law is made for common good[57].. For instance, obscene stuff should be prohibited as it would deprave and corrupt those whose minds are open to such immoral influences[58].. Legislation criminalising breach of morality therefore, plays legitimate role in maintaining a moral environment conducive to virtue and inhospitable to at least some forms of vice[59].. Just as the state can prevent private activity in order to protect its natural ecology, so it may legitimately legislate law as to protect its “moral ecology”[60]..
As far as the position of law regulating personal freedom and morality in Malaysia is concerned, it is almost clear. In a case involving obscene publication under section 292(a) of the Penal Code[61]., Raja Azlan Shah J. (as he then was) pronounced that, “We boast of being a free democratic country but that does not mean that we are not subject to law”[62]..
To some contemporary ‘liberal’ thinkers, breach of morality should not be punished as it is generally victimless crime. For instance, a “deviant sexual intercourse between consenting adults”[63]. is, they argue, a victimless crime as both parties have consented to the act. This crime thus, has no real or tangible victim and therefore, in their opinion, it is unjust to prohibit victimless crimes. Such argument misses some important points. Victims in crime against morality are sometimes intangible, but the point is, there are victims. The public at large, future generations and the religions are the victims of the crime. The effects of the crime may not be immediate, but have negative implications that may gradually occur and explode in the society. Let us take this situation as an example – a married man and a woman commit adultery, and consequently, the woman conceived and delivered a child. The child is illegitimate. The man is under no obligation to maintain the child. If the man dies intestate, the child gets not a single cent from the estate of the man. In addition, the man’s wife and legitimate children (if any) and the members of the society are also affected, either emotionally or physically. The victim of the crime may not be apparent in a short-term, but it will surely appear in the long-term. If the illegitimate child is abandoned, the cost of maintaining and upbringing the child is borne by the society. The child may commit incest in future if he does not know who is his father. (I believe, it is not Islam alone that prohibits adultery and fornication, other religions do condemn these sinful acts). Last, but not, it must be mentioned that training in virtue through the fear of punishment is a discipline provided by the law.[64].
IV. MORALITY IN THE MALAYSIAN LAW
As mentioned earlier, the position of morality is deeply rooted in the Malaysian society. Discussion in the following paragraphs will try to highlight some provisions of law, including the Federal Constitution, that consider morality as one of its essential ingredients.
The word “morality” appears twice in the Federal Constitution, one in art. 11(5), which states that the right to profess, practice and propagate a religion shall not contrary to, inter alia, morality. The other is in art. 10(2), a provision that allows Parliament to create law imposing restriction on the right to freedom of speech and expression on the grounds of, among others, public order or morality. This provision thus, empowers the Parliament to preserve public morality against personal freedom. In other words, Parliament may restrict personal freedom if public morality is at stake. ‘Public morality’ refers to the ideals or general moral beliefs of a society or actions of an individual that affect others[65]..
The incorporation of the word ‘morality’ into the Constitution could be regarded as significant recognition to the role of morality in building our nation.
The Constitution also mentions about the code of ethics that shall always be observed by the judges during his tenure. The breach of the code may lead to his dismissal from the service[66].. This implies that judges are expected to posses certain behaviour suitable to his post.
In criminal law, the Penal Code provides for provisions on offences affecting decency and moral. It is stated in Chapter XIV of the Code[67].. Those offences are mainly relating to dissemination of obscene publications[68]., obscene act[69]. and obscene songs[70].. Apart from these offences, Penal Code also penalises deviant sexual acts, such as incest[71]. and unnatural offences, which include buggery with animal, carnal intercourse against the order of nature, outrages of decency (in public or in private) and inciting a child to an act of gross indecency[72]..
In Criminal Procedure Code, strict regard to decency shall be observed in making a search, whereby body search of a woman is to be made by another woman[73]..
In the law of contract, section 24(e) of the Contract Act prohibits any contract in which its consideration is immoral, or opposed to public policy[74].. A promise to marry by a married man, for instance, is void for it is against morality and public policy.[75].
In family law, Section 5(2) of the Married Women and Children (Maintenance) Act 1950 (Revised 1981), disqualifies a wife who is living in adultery to allowance from her husband. Living in adultery is an immoral act. Section 53 of the Law Reform (Marriage and Divorce) Act 1976 states that breakdown of marriage is a sole ground for divorce. In a petition for divorce, the court is allowed to have regard to the fact that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent[76].. In a petition for divorce when adultery is alleged the Act also requires the third person, the adulterer, be named as co-respondent and provides that he may be condemned in damages[77].. If the court is satisfied that adultery between the respondent and co-respondent has been proved, the petitioner may be awarded with such damages[78]., even if the petition for divorce against the respondent is dismissed or adjourned[79].. For instance, in Tan Wat Yan[80] the court awarded damages amounting to RM 70,000.00 to the petitioner!
V. CONCLUSION
As has been mentioned at the beginning, this debate will never end. It shall stop only when there is willingness on the part of those against moral law to come back to religious conviction and place the trust in the authorities of religion and also the willingness of the sectors in society to sacrifice their personal freedom for public interest. Deleting morality from the Malaysian system for the sake of personal freedom is almost impossible as morality is a deeply imbued value in the Malaysian system, legal or public realm. Damage to the deeply rooted values would cause destruction to the whole nation. Last but not least, it must be mentioned that pursuing on this kind of debate would lead us to no triumph. It will simply bring us to the same direction as the West has been directed – to abandon religion and to cause destruction to its values rooted in the nation.
* A paper prepared for debate session in the 13th Malaysia Law Conference, 16 -18 November 2005, (14 – 16 Syawal 1426), organised by the Bar Council Malaysia at Kuala Lumpur
** Lecturer, Islamic Law Department, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia. The author would like to thank Prof. Dr. Abdul Aziz Bari and Dr. Mohd. Hisham Mohd. Kamal for their ideas and suggestions towards the writing of this paper and thank you to Prof. Dr. Abdul Aziz Bari for bringing to the author’s attention some of the important books referred to in this paper
[1] Islam is a perfect way of life. It is established on three important essentials – the oneness of Allah (Tawhid), the law of Allah (shariah) and morality (akhlaq). For further reading on this subject see for example, Syed Muhammad Naquib al-Attas, Islam and Secularism, International Institute of Islamic Thought (ISTAC), Kuala Lumpur, 1993, esp. at 51 – 95 Akhlaq or adab (ethic) is particularly relevant to this present debate on morality and ethic against the invasion of privacy
[2] For further reading on Islamic criminal law, see A.Q. Oudah Shaheed (Abdul Qadir Awdah), Criminal Law of Islam,S. Zakir Aijaz (Trans.), International Islamic Publishers, Delhi, (in 4 volumes), 2000.
[3] Black’s Law Dictionary, 7th edition, 1999, at 1025
[4] Concise Oxford Dictionary, 10th edition, 1999, at 489
[5] Dennis Llyod, The Idea of Law, Penguin Books, Baltimore, 1964, at 53 – 55, esp. at 55
[6] See for example, a recent Kuala Lumpur High Court’s decision in Balakrishnan Devaraj v. Patwan Singh Niranjan Singh & Anor;Civil suit No. S3-22-903-2000. The court decided that the agreement to ‘tout’ entered into by the parties is void ab initio as it is against rule 51 and 52 of the Legal Profession (Practice and Etiquette) Rules 1978. The court also decided that the Rules is a law that must be followed though it was not directly passed by the Parliament. The agreement was also void as it is against section 24(e) of the Contract Act 1950, where the consideration (‘touting’) in the contract is against public policy. The court disagreed with an earlier decision on ‘touting’ in Koid Hong Keat v Rhina Bhar[1989] 3 MLJ 238
[7] Black’s Law Dictionary, at 829
[8] See above, note 3
[9] Iris Freeman, Lord Denning A Life, Hutchinson, London, 1993, at 213
[10] Ibid
[11] Id. at 404
[12] R v Taylor [1676] 1 vent. 293. reported in English Report 86, at 189.
[13] H. McCoubrey, The Development of Naturalist Legal Theory, Croom Helm, London, 1987, at 55
[14] Id. at xvi
[15] Ibid
[16] William Holdsworth, History of English Law, Sweet and Maxwell, London, 1956, vol. 1, at 580 – 598; Syed Muhammad Naquib al-Attas, Islªm and Secularism, International Institute of Islamic Thought and Civilisation (ISTAC), Kuala Lumpur, 1993, at. 2 – 3.
[17] William Holdsworth, History of English Law, vol. 1, at 580 – 598
[18] For example, the Montagu Case. See <http://www.algebra.com/algebra/about/history/Gay-rights.wikipedia >as retrieved on 5 Oct 2005
[19] Report of the Committee on Homosexual Offenses and Prostitution, Cmd 247 (H.M.S.O.), London, 1957
[20] Ibid. See also Kenneth Kinnis, Philosophical Issues in Law, Prentice Hall, New Jersey, at 44 and Duncan J. Rithcher, “Social Integrity and Private ‘Immorality’ – the Hart-Devlin Debate Reconsidered” at <http://www.humboldt.edu/-essays/ritcher.html > viewed on 10 September 2005
[21] Lord Devlin wrote,
“if men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far and relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.”
Patric Devlin, The Enforcement of Morals, Oxford University Press, London, 1965, at 9
[22] Id., at 11
[23] For further reading on the Debate, see for example, Robert P. George, Making Men Moral: Civil Liberties and Public Morality, Clarendon Press, Oxford, 1993
[24] For further reading on the subject, see Yusuf Qardawi, Islam the Future Civilisation, El-Falah Foundation (Trans), El-Falah Foundation, Cairo, 1419H/1998. Thanks to Tuan Haji Abu Hanifah, Senior Academic Fellow at Ahmad Ibrahim Kulliyyah of Laws for bringing the book to the author’s attention
[25] See above, note 1
[26] For instance, the Quran, surah al-Isra’ (17): especially verses 23 – 49. There are also hadith of the Prophet (SAW) describing the adab or ethic of men, for example, Kitab al-Birr wa Sillah wa al-Adab, Sahih Muslim, Dar Ihya’ al-Turath al-Arabi, Beirut, 2000, at 1091 – 1102; Kitab al-Adab, Sahih Bukhari, Dar al-Salam, Riyadh, 1999, at 1045 – 1083
[27] al-Quran, surah al-Isra’ (17) : 9
[28] Zina is an Arabic word to signify unlawful sexual relationship between man and woman who are not husband and wife, irrespective of whether of them is married to another person or not; hence it denotes both, ‘adultery’ and ‘fornication’ in the English senses of these terminologies.
[29] Al-Quran, surah al-Isra’ (17): 22 - 37
[30] al-Quran, surah al-Isra’ (17) : 38
[31] Id. at xvii
[32] Sahih Muslim, hadith no. 2553
[33] Id., hadith no. 2556
[34] Id., hadith no. 2559
[35] Id., hadith no. 2560
[36] Id., hadith no. 2563
[37] Id., hadith no. 2564. For other relevant hadith, see Sahih Bukhari, Kitab al-Adab, Dar al-Salam, Riyadh, 1999, at 1045 – 1083
[38] S. Abul A’la Maududi, Islamic Law and Constitution, Islamic Publications (Pvt.) (Ltd.), Lahore, at 94
[39] Sayyed Hossein Nasr, A Young Muslim’s Guide to the Modern World, The Islamic Texts Society, Cambridge, 1993, at 143
[40] Ibid.
[41] See Abdul Aziz Bari, “Penguatkuasaan Undang-undang Jenayah Syariah di Malaysia; Satu Perspektif Perlembagaan”, paper presented in Seminar Penguatkuasaan Undang-undang Moral di Malaysia (Seminar on Enforcement of Moral Law) organised by Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, on 17 May 2005, at Gombak. For the constitutional position of Shariah decency law, see Abdul Aziz Bari, Islam dalam Perlembagaan Malaysia, Intel Multimedia and Publication, Petaling Jaya, 2005, at 141 – 153
[42] Black’s Law Dictionary, at 390
[43] For further reading, see Wan Arfah Hamzah & Ramy Bulan, An Introduction to the Malaysian Legal System, Fajar Bakti Sdn. Bhd., Shah Alam, 2003, especially at 151 – 180
[44] <http://www.pmo.gov.my/website/webdb.nsf/vALLDOC/434FD713455D583B48256BC900309773 >as retrieved on 6 Oct 2005 - “Malaysia sebagai negara maju sepenuhnya - satu takrif”
[45] Rukun Negara was initiated in the aftermath of 13 May incident as to preserve racial harmony and social stability in the country
[46] See <http://www.parlimen.gov.my/transfer/Ringkasanperpaduan.pdf > as retrieved on 25 September 2005
[47] The Ritz Hotel Casino Ltd & Anor v Datu Seri Osu Hj Sukam [2005] 3 CLJ 390, at 393. Other cases that took into consideration the status of Rukun Negara are Public Prosecutor v Z [1995] 4 CL 383, Village Holdings Sdn Bhd v Her Majesty The Queen In Right Of Canada [1987] 1 LNS 80 and Ng Kok Jooi v Public Prosecutor [1974] 1 LNS 105
[48] see <http://www.alamut.com/subj/economics/misc/clash.html > as retrieved on 9 Sep 2005
[49] Otto-Preminger-Institut v Austria (1995) 19 EHRR, [1994] ECHR 13470/87
[50] Article 3(1) of the Federal Constitution.
[51] Abdul Aziz Bari, Islam dalam Perlembagaan Malaysia, Intel Multimedia and Publication, Petaling Jaya, 2005, at 12
[52] The ‘integral test’ in this context refers to a test whether certain act is the integral part of religion or not
[53] Fatimah Sihi & Ors v Meor Atiqulrahman Ishak & Ors [2005] 2 CLJ 255
[54] Report of Malaya Constitutional Commission1957, para. 161 mentions that the purpose of Part III (Fundamental Liberties) of the Federal Constitution is to establish a free and democratic way of life
[55] <http://www.class.uidaho.edu/eng258_1/rousseau/JJRSocial.htm > as retrieved on 13 Mar 2005
[56] H. McCoubrey, The Development of Naturalist Legal Theory, note. 13, at 51
[57] Ibid
[58] Mohamed Ibrahim v Public Prosecutor [1963] 1 MLJ 289, at 291
[59] Robert P. George, Making Men Moral, note 23, at 158
[60] Ibid..
[61] Section 292(a) of the Penal Code provides,
“Whoever – sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation make, produces or has in possession any obscene book, pamphlet, paper, drawing, painting representation or figure or any other obscene object whatsoever; or (b)… … shall be punished with imprisonment for a term which may extent to three years, or with fine, or with both”.
[62] KS Roberts v Public Prosecutor [1970] 2 MLJ 137, at 138
[63] Black’s Law Dictionary, at 378.
[64] H. McCoubrey, The Development of Naturalist Legal Theory, note 13, at 48
[65] Black’s Law Dictionary, 1025
[66] Federal Constitution, Article 125(3)
[67] The title of the Chapter reads, “Offences affecting the Public Health, safety, convenience, decency and morals”
[68] Penal Code, sections 292 and 293
[69] Penal Code, section 294(a)
[70] Penal Code, section 292(b)
[71] Penal Code, section 376A and 376B
[72] Penal Code, sections 377 to 377E
[73] Criminal Procedure Code, section 19(2)
[74] See above, note 7, Balakrishnan Devaraj v Patwan Singh Niranjan Singh & Anor,Civil suit No. S3-22-903-2000.
[75] Spiers v Hunt [1908] 1 KB 729; Wilson v Carnley [1908] 1 KB 729.
[76] Law Reform (Marriage and Divorce) Act 1976, section 54(1)
[77] Law Reform (Marriage and Divorce) Act 1976, section 58(1)(2)
[78] Law Reform (Marriage and Divorce) Act 1976, section 58(3)(b)
[79] Law Reform (Marriage and Divorce) Act 1976, section 59(1)
[80] Tan Wat Yan v Kong Chiew Meng [1994] 3 CLJ 676
*This paper was delivered at the 13th Malaysian Law Conference.
Text of Obama's victory speech
Tuesday, November 4th, 2008, Chicago, Illinois: Text of President-elect Barack Obama's victory speech in Chicago on Tuesday, as released by his campaign:
If there is anyone out there who still doubts that America is a place where all things are possible; who still wonders if the dream of our founders is alive in our time; who still questions the power of our democracy, tonight is your answer.
It's the answer told by lines that stretched around schools and churches in numbers this nation has never seen; by people who waited three hours and four hours, many for the very first time in their lives, because they believed that this time must be different; that their voice could be that difference.
It's the answer spoken by young and old, rich and poor, Democrat and Republican, black, white, Latino, Asian, Native American, gay, straight, disabled and not disabled - Americans who sent a message to the world that we have never been a collection of Red States and Blue States: we are, and always will be, the United States of America.
It's the answer that led those who have been told for so long by so many to be cynical, and fearful, and doubtful of what we can achieve to put their hands on the arc of history and bend it once more toward the hope of a better day.
It's been a long time coming, but tonight, because of what we did on this day, in this election, at this defining moment, change has come to America.
I just received a very gracious call from Senator McCain. He fought long and hard in this campaign, and he's fought even longer and harder for the country he loves. He has endured sacrifices for America that most of us cannot begin to imagine, and we are better off for the service rendered by this brave and selfless leader. I congratulate him and Governor Palin for all they have achieved, and I look forward to working with them to renew this nation's promise in the months ahead.
I want to thank my partner in this journey, a man who campaigned from his heart and spoke for the men and women he grew up with on the streets of Scranton and rode with on that train home to Delaware, the Vice President-elect of the United States, Joe Biden.
I would not be standing here tonight without the unyielding support of my best friend for the last sixteen years, the rock of our family and the love of my life, our nation's next First Lady, Michelle Obama. Sasha and Malia, I love you both so much, and you have earned the new puppy that's coming with us to the White House. And while she's no longer with us, I know my grandmother is watching, along with the family that made me who I am. I miss them tonight, and know that my debt to them is beyond measure.
To my campaign manager David Plouffe, my chief strategist David Axelrod, and the best campaign team ever assembled in the history of politics - you made this happen, and I am forever grateful for what you've sacrificed to get it done.
But above all, I will never forget who this victory truly belongs to - it belongs to you.
I was never the likeliest candidate for this office. We didn't start with much money or many endorsements. Our campaign was not hatched in the halls of Washington - it began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston.
It was built by working men and women who dug into what little savings they had to give five dollars and ten dollars and twenty dollars to this cause. It grew strength from the young people who rejected the myth of their generation's apathy; who left their homes and their families for jobs that offered little pay and less sleep; from the not-so-young people who braved the bitter cold and scorching heat to knock on the doors of perfect strangers; from the millions of Americans who volunteered, and organized, and proved that more than two centuries later, a government of the people, by the people and for the people has not perished from this Earth. This is your victory.
I know you didn't do this just to win an election and I know you didn't do it for me. You did it because you understand the enormity of the task that lies ahead. For even as we celebrate tonight, we know the challenges that tomorrow will bring are the greatest of our lifetime - two wars, a planet in peril, the worst financial crisis in a century. Even as we stand here tonight, we know there are brave Americans waking up in the deserts of Iraq and the mountains of Afghanistan to risk their lives for us. There are mothers and fathers who will lie awake after their children fall asleep and wonder how they'll make the mortgage, or pay their doctor's bills, or save enough for college. There is new energy to harness and new jobs to be created; new schools to build and threats to meet and alliances to repair.
The road ahead will be long. Our climb will be steep. We may not get there in one year or even one term, but America - I have never been more hopeful than I am tonight that we will get there. I promise you - we as a people will get there.
There will be setbacks and false starts. There are many who won't agree with every decision or policy I make as President, and we know that government can't solve every problem. But I will always be honest with you about the challenges we face. I will listen to you, especially when we disagree. And above all, I will ask you join in the work of remaking this nation the only way it's been done in America for two-hundred and twenty-one years - block by block, brick by brick, calloused hand by calloused hand.
What began twenty-one months ago in the depths of winter must not end on this autumn night. This victory alone is not the change we seek - it is only the chance for us to make that change. And that cannot happen if we go back to the way things were. It cannot happen without you.
So let us summon a new spirit of patriotism; of service and responsibility where each of us resolves to pitch in and work harder and look after not only ourselves, but each other. Let us remember that if this financial crisis taught us anything, it's that we cannot have a thriving Wall Street while Main Street suffers - in this country, we rise or fall as one nation; as one people.
Let us resist the temptation to fall back on the same partisanship and pettiness and immaturity that has poisoned our politics for so long. Let us remember that it was a man from this state who first carried the banner of the Republican Party to the White House - a party founded on the values of self-reliance, individual liberty, and national unity. Those are values we all share, and while the Democratic Party has won a great victory tonight, we do so with a measure of humility and determination to heal the divides that have held back our progress. As Lincoln said to a nation far more divided than ours, "We are not enemies, but friends...though passion may have strained it must not break our bonds of affection." And to those Americans whose support I have yet to earn - I may not have won your vote, but I hear your voices, I need your help, and I will be your President too.
And to all those watching tonight from beyond our shores, from parliaments and palaces to those who are huddled around radios in the forgotten corners of our world - our stories are singular, but our destiny is shared, and a new dawn of American leadership is at hand. To those who would tear this world down - we will defeat you. To those who seek peace and security - we support you. And to all those who have wondered if America's beacon still burns as bright - tonight we proved once more that the true strength of our nation comes not from our the might of our arms or the scale of our wealth, but from the enduring power of our ideals: democracy, liberty, opportunity, and unyielding hope.
For that is the true genius of America - that America can change. Our union can be perfected. And what we have already achieved gives us hope for what we can and must achieve tomorrow.
This election had many firsts and many stories that will be told for generations. But one that's on my mind tonight is about a woman who cast her ballot in Atlanta. She's a lot like the millions of others who stood in line to make their voice heard in this election except for one thing - Ann Nixon Cooper is 106 years old.
She was born just a generation past slavery; a time when there were no cars on the road or planes in the sky; when someone like her couldn't vote for two reasons - because she was a woman and because of the color of her skin.
And tonight, I think about all that she's seen throughout her century in America - the heartache and the hope; the struggle and the progress; the times we were told that we can't, and the people who pressed on with that American creed: Yes we can.
At a time when women's voices were silenced and their hopes dismissed, she lived to see them stand up and speak out and reach for the ballot. Yes we can.
When there was despair in the dust bowl and depression across the land, she saw a nation conquer fear itself with a New Deal, new jobs and a new sense of common purpose. Yes we can.
When the bombs fell on our harbor and tyranny threatened the world, she was there to witness a generation rise to greatness and a democracy was saved. Yes we can.
She was there for the buses in Montgomery, the hoses in Birmingham, a bridge in Selma, and a preacher from Atlanta who told a people that "We Shall Overcome." Yes we can.
A man touched down on the moon, a wall came down in Berlin, a world was connected by our own science and imagination. And this year, in this election, she touched her finger to a screen, and cast her vote, because after 106 years in America, through the best of times and the darkest of hours, she knows how America can change. Yes we can.
America, we have come so far. We have seen so much. But there is so much more to do. So tonight, let us ask ourselves - if our children should live to see the next century; if my daughters should be so lucky to live as long as Ann Nixon Cooper, what change will they see? What progress will we have made?
This is our chance to answer that call. This is our moment. This is our time - to put our people back to work and open doors of opportunity for our kids; to restore prosperity and promote the cause of peace; to reclaim the American Dream and reaffirm that fundamental truth - that out of many, we are one; that while we breathe, we hope, and where we are met with cynicism, and doubt, and those who tell us that we can't, we will respond with that timeless creed that sums up the spirit of a people:
Yes We Can. Thank you, God bless you, and may God Bless the United States of America.
The Serban Case: Full Judgment delivered by Datuk Abdul Hamid Mohamad FCJ
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANG KUASA RAYUAN)
PERMOHONAN SIVIL NO. 01-3-2005(N)
ANTARA
1. MEOR ATIQULRAHMAN BIN ISHAK, seorang budak, melalui Penjaga ad litem, Syed Ahmad Johari bin Syed Mohd.
2. SYED ABDULLAH KHALIQ ASLAMY BIN SYED AHMAD JOHARI, seorang budak, melalui bapanya, Syed Ahmad Johari bin Syed Mohd
3. SYED AHMAD SYAKUR DIHYA BIN SYED AHMAD JOHARI , seorang budak, melalui bapanya, Syed Ahmad Johari bin Syed Mohd
… Perayu-Perayu
DAN
1. FATIMAH BINTI SIHI
2. KETUA SETIAUSAHA,KEMENTERIAN PENDIDIKAN MALAYSIA
3. KERAJAAN MALAYSIA
… Responden-Responden
KORAM:
ABDUL MALEK AHMAD, PCA
STEVE SHIM LIP KIONG CJ (SABAH & SARAWAK)
ABDUL HAMID MOHAMAD FCJ
JUDGMENT
ABDUL HAMID MOHAMAD FCJ (delivering the judgment of the Court): Syed Ahmad Johari bin Syed Mohd (“Syed Ahmad”) is the father of the 2nd and 3rd Appellants and the guardian of the 1st Appellant. He and his family live in a FELDA Scheme in Serting, Bahau, Negeri Sembilan. He himself is a teacher at Sekolah Menengah FELDA Lui Barat in the same area. The three Appellants were students at Sekolah Kebangsaan Serting Hilir (FELDA), Bandar Baru Serting, Negeri Sembilan. At the material time, the 1st, 2nd, and 3rd Appellants were in Standard 5, 3 and 2 respectively and about 11, 9 and 8 years old respectively.
The school had issued the Peraturan Sekolah Kebangsaan Serting (FELDA) 1997 (“The School Regulations 1997”), made pursuant to Surat Pekeliling Ikhtisas Bil. 9/1975 issued by the Ministry of Education.
Regulation 3 of the School Regulations 1997 stipulates, inter alia, that the uniform for male pupils comprises of blue black long pants, white short-sleeved shirt, white rubber shoes and socks. Regulation 3(f)(v) provides that black or blue black songkok is allowed to be worn. However, in regulation 3(i)(i), all pupils are prohibited from wearing “jubah, turban (serban), topi, ketayap dan purdah”.
The Appellants wore turban as part of the school uniform to school. They were advised not to do so and to comply with the School Regulations 1997. When they refused, the 1st Respondent requested Syed Ahmad to see her. At a meeting on 3 April 1997, the 1st Respondent requested Syed Ahmad to cooperate to ensure that the Appellants adhere to the School Regulations 1997. He refused to cooperate and the Appellants continued to wear turban to school.
On 28 July 1997 and 4 August 1997 the Respondent sent two letters to Syed Ahmad informing him about the Appellants’ breach of the School Regulations 1997 and for the Appellants to substitute “songkok” for the turban. The 1st Respondent again requested for Syed Ahmad’s cooperation to avoid disciplinary action being taken against the Appellants.
On 30 August 1997 the Director of Education of Negeri Sembilan wrote to Syed Ahmad stressing that the Appellants had to observe the Regulations “demi kepentingan dan kesejahteraan warga sekolah dan masyarakat sekitar”.
As the Appellants continued to refuse to comply with the Regulations, on 3 November 1997 the 1st Respondent sent a letter to Syed Ahmad informing him that the Appellants had been expelled from the school with effect from 10 November 1997.
They challenged their dismissal in court. The learned Judge found in their favour, inter alia, ruling that the School Regulations 1997 was unconstitutional [(2000) 1 CLJ 393.] The Court of Appeal reversed the judgment of the High Court [(2005) 2 CLJ 255].
This Court granted leave to appeal on one issue only:
Whether the regulations prohibiting the wearing of “serban” by school pupils violate Article 11(1) of the Federal Constitution.
So, the issue before this Court is not whether the wearing of turban is constitutional or not but whether the School Regulations 1997, in so far as it prohibits the wearing of turban by the students of the school as part of the school uniform during school hours is constitutional or not.
Before us, learned counsel for the Appellants argued that the regulation prohibiting students from wearing turban violates the provisions of Article 11 (1) of the Federal Constitution. That Article provides:
“11(1) Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.”
He argued that this appeal relates to the right to practise one’s religion but submitted that the word “profess” and “practise” must be read together (I do not quite understand what he meant by “must be read together”.) He submitted that the right to practise one’s religion includes every religious practice “which have some basis or become part of that religion whether they are mandatory or otherwise.” That right can only be restricted if, by exercising such rights, it affects public order, public health and public morality enshrined in Article 11(5) of the Constitution. Learned counsel further submitted that the right to wear turban, even though not mandatory, is part of “Islamic prophetic teaching”.
The Court of Appeal, in arriving at its conclusion, applied the test of whether “the right to wear a “serban” is an integral part of the religion of Islam”. The court said that that is a question of evidence and it was for the Appellants to adduce sufficient relevant admissible material to prove that that is indeed the case. The court concluded:
“there was not a shred of evidence before the learned judge confirming that the wearing of a serban is mandatory in Islam and is therefore an integral part of Islam”.
The Court of Appeal in applying “the integral part of the religion” test relied on a number of Indian authorities like The Commissioner, Hindu Religious Endowments, Madras, v. Sri Lakshmindra Thirtha Swamiar AIR 1954 SC 282, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853, Javed v State of Haryana (AIR) 2003 SC 3057 and Commissioner of Police v. Acharya Jagadishwaranada Avadhuta (2004) 2 LRI 39. The court also referred to the judgment of the Malaysian Supreme Court in Hajjah Halimatussadiah bte Hj. Kamaruddin v. Public Services Commission Malaysia & Anor (1994) 3 MLJ 61 where the Supreme Court applied the same test.
Before us, the test was strongly criticised. Learned counsel for the Appellants argued that by giving such an interpretation the court was “rewriting Article 11(1) or putting a new or an extra/additional restrictions on the right to profess and practice one’s religion apart from the existing restrictions contained/enshrined in Article 11(5) of the Federal Constitution.” The Court of Appeal was criticised for relying on Indian authorities, especially because of the differences between the provisions of the Indian Constitution and the Federal Constitution, in particular, the preamble to the Indian Constitution declares India to be a secular state and no religion of the state is provided. It is also said, who is to decide whether a particular practice is an integral part of a religion or not?
I am therefore of the view that whether a practice is or is not an integral part of a religion is not the only factor that should be considered. Other factors are equally important in considering whether a particular law or regulation is constitutional or not under Article 11(1) of the Federal Constitution. I would therefore prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion. All these having been proved, the court should then consider the importance of the practice in relation to the religion. This is where the question whether the practice is an integral part of the religion or not becomes relevant. If the practice is of a compulsory nature or “an integral part” of the religion, the court should give more weight to it. If it is not, the court, again depending on the degree of its importance, may give a lesser weight to it.
In the Islamic context, the classification made by jurists on the “hukum” regarding a particular practice will be of assistance. Prohibition of a practice which is “wajib” (mandatory) should definitely be viewed more seriously than the prohibition of what is “sunat” (commendable).
The next step is to look at the extent or seriousness of the prohibition. A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition. For example, a regulation that prohibits an adult Muslim male from leaving his job to perform the Friday prayer is more serious than a regulation that requires adult male Muslims employees to take turn to perform their “Asar” prayer, all within the “Asar” period.
Then, we will have to look at the circumstances under which the prohibition is made. An air traffic controller will have to be at his post even during Friday prayers, where replacement by a non-Muslim or a female employee is not possible. A surgeon who starts an emergency operation just before the “Maghrib” prayer may have to miss his prayer. (Even the Shariah provides exceptions and relaxation of its application under certain circumstances).
In other words, in my view, all these factors should be considered in determining whether the “limitation” or “prohibition” of a practice of a religion is constitutional or unconstitutional under Article 11(1) of the Federal Constitution.
Who is to decide? Of course, it has to be the court when the matter comes before the court. Expert witnesses may be called to assist the court regarding a practise or, in the case of Islam, the issue regarding the “hukum” of the practice may be referred to the Shari’ah Committees (Fatwa Committees) in the States or the National Fatwa Council. Such a reference had been made by the Supreme Court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor. (1992) 1 MLJ 1.
In this case, that Islam is a religion is a fact that cannot be denied.
The next question is whether the wearing of turban by boys of the age of the Appellants is a practice of the religion of Islam. Islam is not about turban and beard. The pagan Arabs, including Abu Jahl, wore turbans and kept beards. It was quite natural for the Prophet (P.B.U.H.), born into the community and grew up in it, to do the same. As it was not repugnant to the teaching of Islam, he continued to do so. During the argument, in answer to my question, learned counsel tried to equate the wearing of turban with the “Hajj”: the “Hajj” too was performed in pre-Islamic days and continued to be performed after the coming of Islam. That, with respect, is misconceived. The “Hajj” performed by the pagan Arabs was completely different from the “Hajj” taught by the Prophet (P.B.U.H.). Further more, there are clear provisions in the Al-Quran that make the performance of the “Hajj” mandatory and one of the pillars of Islam.
Turbans were (and are) not only worn by Arabs. Other peoples, living in the desert or semi-desert areas, e.g. the Afghans and Persians wore/wear them too. Indeed, anybody who goes to Mecca will immediately realize that a piece of cloth, by whatever name it is called, to cover his head and face from the heat, the dryness and the dust, is most useful. Nowadays, the turbans, distinguished by their designs and the way they are tied or worn, symbolize the nationality of the persons wearing them e.g. whether they are Saudis, Sudanese, Afghans, Omanis, etc. The turban has become part of the national dress of those countries.
In Malaysia, until 1960’s, the turban worn the way the Appellants wear them, were only worn by “Hajis”, men who had performed the Hajj (pilgrimage). There were few “Hajis” then, one or two in a village. Of course the wearing of turban carried with it a social status, a sign of “alim” (knowledgeable in matters of Islamic religion) and “warak” (piety). Non-Hajis would not wear them. They would be ashamed to do so.
Then came 1970’s and the appearance of “dakwah” (missionary) groups. They distinguished themselves by their dress, the men and their male children wore “jubah” and “serban”. One such organization had been declared unlawful. We saw their top leaders confessing, crying and repenting over television!
It is interesting to note that, even now, very few of our Muftis and hardly any Shari’ah Court Judge wears turban.
Coming now to boys of the age of the Appellants. According to Shari’ah (and/or fiqh), the obligation to perform even a mandatory (“wajib”) practice like the five daily prayers, is only mandatory on Muslims who have attained the age of majority (“baligh”), usually taken to be 15 years of age for boys. Clearly the Appellants have not. Of course it is obligatory on the parent or guardian to teach them how to perform the prayers, for example, and to encourage them to perform them even before they reach the age of majority. So, even with regard to practices that are mandatory (“wajib”), the Shari’ah treats adults and children differently, like any law, for that matter.
The best place to see whether it is the practice of boys, I am speaking about Arab and Arabic-speaking boys (not Malay boys living in a FELDA settlement), of the age of the Appellants to wear turban or not, is to go to Masjid Al-Haram, the birthplace of the Prophet (P.B.U.H.), where the “House of Allah” (“Baitullah” or the “Kaabah”) stands. Go there after the “Asar” prayer. One can see scores of boys of the age of the Appellants sitting cross-legged learning to read and reciting the Al-Quran. None of them wears turban, whether tied the way the Appellants do or otherwise.
(I must admit that these observations that I have made do not come from evidence adduced in court. However, sitting in the highest court in the country and interpreting the Constitution, I hold the view that a judge is entitled to look around and observe the happenings in the society. These are matters that one sees in everyday life. No expertise or technical qualification is required to observe such happenings. Neither should judges not read anything other than law. I do not think that judges should keep their eyes shut and only wait for “expert witnesses” to inform them such things as the kind of dress Malaysians usually wear or that we can hardly find bullock carts on Malaysian road nowadays. “Justice is blind”. Yes. But not judges. They should not be).
As far as I can ascertain, the Al-Quran makes no mention about the wearing of turban. Neither SP3 nor the learned trial Judge who cited some verses from the Al-Quran which, with respect, are not relevant to the issue, could produce any. The one “hadith” referred to by SP3 makes no mention of its classification in terms of authoritativeness. In any event one does not look at one “hadith” in isolation to make a ruling on a matter. Even then, the way it is said, (based on the evidence given by SP3: “Hadith: hendaklah kelian memakai serban kerana kelian akan bertambah sabar”) shows that there is a reason for it. As far as the reason given, I shall not comment. Certainly the Prophet (P.B.U.H.) knows his people better and what suits them. The other “hadith” mentioned by SP3 only tells us how the Prophet (P.B.U.H.) used to wear his turban, nothing more. Of course, I am also aware of other “hadiths”, not mentioned by SP3 or the learned trial Judge, that prohibit the wearing of turban by men when in “ihram”. They do not assist us.
It is also not disputed that there had been no “fatwa” in this country on the wearing of turban.
I accept that the Prophet (P.B.U.H.) wore turban. But he also rode a camel, built his house and mosque with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding a camel a more pious deed than travelling in an aeroplane? Is it preferable to build houses and mosques using the same materials used by the Prophet (P.B.U.H.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?
It is not everything that the Prophet (P.B.U.H.) did or the way he did it that is legally (according to Shariah) or religiously binding on Muslims or even preferable and should be followed.
I find the book “Principles of Islamic Jurisprudence” by Mohammad Hashim Kamali (1991) to be very useful in understanding the issue on “Sunnah”. I shall only quote certain parts that are of particular relevance to the issue under discussion:
“The entire bulk of the Sunnah, that is, the sayings, acts and tacit enactments of the Prophet, may be once again divided into two types: non-legal and legal Sunnah.
Non-legal Sunnah (Sunnah ghayr tashri’iyyah) mainly consists of the natural activities of the Prophet (al-af’al al’jibilliyyah) such as the manner in which he ate, slept, dressed, and such other activities as do not seek to constitute a part of the Shari’ah. Activities of this nature are not of primary importance to the Prophetic mission and therefore do not constitute legal norms. According to the majority of ulema, the Prophet’s preferences in these areas, such as his favourite colours, or the fact that he slept on his right side in the first place, etc., only indicate the permissibility (ibahah) of the acts in question.29”……………………………….
“On a similar note, Sunnah which partakes in specialized or technical knowledge, such as medicine, commerce and agriculture, is once again held to be peripheral to the main function of the Prophetic mission and is therefore not a part of the Shari’ah. As for acts and sayings of the Prophet that related to particular circumstances such as the strategy of war, including such devices that misled the enemy forces, timing of attack, siege or withdrawal, these too are considered to be situational and not a part of the Shari’ah.31”…………………………………
“Certain activities of the Prophet may fall in between the two categories of legal and non-legal Sunnah as they combine the attributes of both. Thus it may be difficult to determine whether an act was strictly personal or was intended to set an example for others to follow. It is also known that at times the Prophet acted in a certain way which was in accord with the then prevailing custom of the community. For instance, the Prophet kept his beard at a certain length and trimmed his moustache. The majority of ulema have viewed this not as a mere observance of the familiar usage at the time but as an example for the believers to follow. Others have held the opposite view by saying that it was a part of the social practice of the Arabs which was designed to prevent resemblance to the Jews and some non-Arabs who used to shave the beard and grow the moustache. Such practices were, in other words, a part of the current usage and basically optional. Similarly, it is known that the Prophet used to go to the “id prayers (salat al-‘id) by one route and return from the mosque by a different route, and that the Prophet at times performed the hajj pilgrimage while riding a camel. The Shafi’i jurists are inclined to prefer the commendable (mandub) in such acts to mere permissibility whereas the Hanafis consider them as merely permissible, or mubah.34”
SP3 gave his opinion that the wearing of turban is “sunat”. Clearly he based his opinion on the views of the traditional jurists – the turban– wearing scholars from turban-wearing communities who lived at a time when the wearing of turban was customary or fashionable. Certainly their surroundings could have, to a certain extent, influenced their views on a matter such as the wearing of turban where Al-Quran is silent. That is natural. Imam Shafie revised some of his rulings after living in Egypt for a few years and observing the custom of the people there. That is the mark of a great jurist!
Even if we were to accept the view of SP3 that the wearing of turban (by adult Muslim male) is “sunat” or (commendable), it certainly does not rank on the same level as “sunat prayers”, as learned counsel for the Appellants tried to convince the court when the question was put to him by me.
So, the “practice” is of little significance from the point of view of the religion of Islam, what more, in relation to under-aged boys. Certainly, it is not a part of “Islamic prophetic teaching” as submitted by the learned counsel for the Appellants.
Moving to the second factor which, in my view, should be considered i.e. the extent of the “prohibition”.
We are not dealing with a total prohibition of wearing of the turban. The students, primary school students of the school, are not allowed to wear the turban as part of the school uniform, i.e. during the school hours. They are not prevented from wearing the turban at other times. Even in school, certainly, they would not be prevented from wearing the turban when they perform, say, their “Zohor” prayer in the school “surau” (prayer room). But, if they join the “Boy Scout”, it is only natural if they are required to wear the Scouts uniform during its activities. Or, when they play football, naturally they would be required to wear shorts and T-shirts. Should they be allowed to wear “jubah” when playing football because it was the practice of the Prophet (P.B.U.H.) to wear jubah? Following the arguments or learned counsel for the Appellants, they should. Certainly, there is a place for everything.
Furthermore, there is nothing to prevent them from changing school, e.g. to a “pondok” school that would allow them to wear the turban.
To accept the learned counsel’s argument would mean that anybody has a right to do anything, any time, anywhere which he considers to be a practice of his religion, no matter how trivial. The only limit is clause (5). To me, that cannot be the law.
Coming now to the third factor that in my view, should be considered i.e. the circumstances under which the “prohibition” was made.
Whether we like it or not, we have to accept that Malaysia is not the same as a Malay State prior to the coming of the British. She is multi-racial, multi-cultural, multi-lingual and multi-religious. It is difficult enough to keep the 14 States together. By any standard, Malaysia’s success has been miraculous in terms of unity, peace and prosperity. Whatever other factors that had contributed to it, we cannot ignore the educational system that had helped to mould the minds of Malaysian boys and girls to grow up as Malaysians. Recently, we heard about ”polarization” of students at universities not only on racial and religious grounds but also among the Muslim students themselves. The polarization was considered serious and even a dangerous trend. Hence, national service was introduced. Of course, such polarization do not begin the moment the students step into the campus. The seeds were sown and grew while they were in school. Our educationists, with their experience in dealing with students on the ground, should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.
Look at these three Appellants. During their formative years, when they should be attending school, study and play with other students, obey the school discipline, respect their teachers, they were made to spend those years being different from other students, disregard the school regulations, disobey the teachers, rebel against the authorities, just because Syed Ahmad, described by the learned trial Judge as “angkuh” wanted the three Appellants to wear the turban to school because the turban is his family’s emblem!
Considering all these factors, in my judgment, the School Regulations 1997 in so far as it prohibits the students from wearing turban as part of the school uniform during school hours does not contravene the provision of Article 11(1) of the Federal Constitution and therefore is not unconstitutional.
I would dismiss the appeal with costs here and in the courts below and order that the deposit be paid to the respondents to account of taxed costs.
Both the learned President of the Court of Appeal and the learned Chief Judge (Sabah & Sarawak) had read this judgment in draft and agreed with it. The Court orders accordingly.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim, Mahkamah Persekutuan
Malaysia.
Tarikh: 12 Julai 2006
Tarikh Sidang: 6 Mac 2006
Peguamcara Perayu:
Mohamed Hanipa B. Maidin
Muhammad Firdaus B. Zakaria
Mohd. Fadzli B. Mohd. Ramly
Abdullah Bin Abdul Karim
(Tetuan Mohamed Hanipa & Associates).
Peguamcara Responden:
Dato’ Umi Kalthum Binti Abdul Majid
Azizah Binti Haji Nawawi
(Peguam Kanan Persekutuan
Jabatan Peguam Negara).
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