How much time-off to vote?

Polling day is on the 9^th of May, 2018, which is a Wednesday. One of the most immediate concerns is whether an employee can take time-off to vote. This is even more crucial for those voting in other states, especially in Sabah and Sarawak.

Section 25(1) of the Election Offences Act 1954 mandates all employers to allow every employee (who are electors) a “reasonable period for voting”. The said section provides:

“(1) Every employer shall, on polling day, allow to every elector in his employ a reasonable period for voting, and no employer shall make any deduction from the pay or other remuneration of any such elector or impose upon or exact from him any penalty by reason of his absence during such period”

The penalty for contravening the provision is “a fine of five thousand ringgit or to imprisonment for one year”

The apparent question that arises is what does “reasonable period” mean? The act does not define the phrase. I could not come across any similar examples (same type of law) in other jurisdictions where such a phrase is defined. For example, in the United States, different states have different laws on the subject. Some state laws specify the period and some state laws do not.

This is understandable. No law or court specifically defines what “reasonable” means. What they do is however set out wide parameters of what amounts to “reasonable”. Other laws in other countries which contain the phrase “reasonable period” have been construed in the following way:

1.    It must be applied on a case to case basis on the facts of each case;

2.    In so applying the phrase, one must do so to ensure that the object of the provision is not defeated;

3.    The realities and potential difficulties must be taken into account.

Those cases deal with different laws concerning private transactions. However, there is no reason to say that such considerations should not equally apply to an election law. In fact, a more liberal reading of the phrase “reasonable period” should be preferred for such a law for the following reasons

1.    Section 25 seeks to ensure that the right to vote can be exercised;

2.    The right to vote is a fundamental right guaranteed under Article 119(1) of the Federal Constitution.

3.    All ordinary laws must be interpreted in a manner to ensure that fundamental rights can be exercised.

4.    Provisions in a statute must also be interpreted in line with its object. The object of the Election Offences Act 1954 is clearly to uphold democracy

Based on the above, no fixed time frame can be forced on the phrase “reasonable period”. It must be construed liberally and generously to ensure that a particular voter is allowed sufficient time for her/him to vote. This must be done on a case to case basis. If a voter is voting in the same state, perhaps a few hours is sufficient. If a voter working in Peninsular Malaysia has to vote in Sarawak, this might mean the whole day.

I note that the section starts with the words, “on polling day”, which seems to suggest that any time-off is only limited to the 9^th of May 2018. It will be difficult to argue that a voter (working in Peninsular Malaysia) voting in distant state is entitled to have time-off on the day before. However, my view is that the section can be construed liberally to include the day before to accommodate travel time to ensure that the purpose of the provision is fulfilled, i.e. to allow for the employee to vote. To construe it otherwise would be to defeat the very purpose of the provision and to render it illusory.

Ultimately, it must be remembered that we are speaking of a fundamental right which forms the root of any functioning democracy. Laws, policies and day-to-day matters must give way to fundamental rights, and not the reverse. After all, this only happens once in 5 years. Oh wait! This particular choice of day is a first!

Islam as the Religion of the Federation: Reply to former CJ and Haniff Khatri

Recently, the former Chief Justice, Tun Ahmad Fairuz, said in a lecture that “anything which is in contradiction to Islam is unconstitutional”. This was later supported by a senior lawyer named Haniff Khatri. In essence, both of them argue that Article 3 of the Constitution has the effect of incorporating substantive Islamic jurisprudence into the Constitution. They say, therefore, that any law which is inconsistent with Islamic jurisprudence is therefore unconstitutional.

Many lawyers, including a former Federal Court judge, spoke out against such a proposition. I think the topic requires a more detailed analysis in light of the rising extremism in the country.

Let us start with the basics. Article 3(1) states that, “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” The first question that must be asked is this: What is the meaning of the phrase “religion of the Federation”? In interpreting a constitution, one cannot apply ordinary principles of interpretation. Recognition must be given to “the character and origin of the instrument” and “respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language”. The historical perspective behind the phrase is therefore important. A constitution cannot be read literally.

The Reid Commission, the commission that put up the first draft of the Constitution, stated (on Article 3(1)), “…shall not imply that the State is not a secular state”. This was reiterated by the Working Party in 1957 which noted, “This will in no way affect the present position of the Federation as a secular State”. It was on this basis that Sarawak and Sabah agreed to enter the Federation. The Cobold Commission observed, “We are satisfied that the proposal in no way jeopardizes freedom of religion in the Federation, which in effect would be secular”.

It was in this context that the Supreme Court in Che Omar Bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 observed:

“The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M.B. Hooker, Islamic Law in South-east Asia, 1984.) In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word "Islam" in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void.”

The usage of the word “Islam” in Article 3(1) is only confined to personal law. The last sentence of the quoted passage is important. An example of a constitution where Islamic law is supreme is the Constitution of the Republic of Maldives. Article 10 of that constitution provides

“10. (a) The religion of the State of the Maldives is Islam. Islam shall be the one of the basis of all the laws of the Maldives.

(b) No law contrary to any tenet of Islam shall be enacted in the Maldives.”

This is what the Supreme Court meant in the said passage. Article 3(1) does not go that far. My colleague from the Malaysian Bar, Haniff Khatri, sought to distinguish the Supreme Court decision by reportedly saying that all that was stated was that laws made by Parliament are secular. I am not sure which judgment he read, but the one that is reported states:

“It would thus appear that not much reliance can be placed on the wording of Article 3 to sustain the submission that punishment of death for the offence of drug trafficking, or any other offence, will be void as being unconstitutional. We, therefore, do not consider important to discuss cases cited by counsel on the question of death penalty being contrary to Islamic perception.”

What this means is that no law can be declared unconstitutional for it being contrary to Islamic jurisprudence. Professor Ahmad Ibrahim, who was the prime mover behind the Islamic reforms in the country back in the 1980s, observed in one of his writings that:

“However it was explained by the Alliance Party that it was not intended to interfere with the position of the Rulers as Head of Islam in their own States and that the intention in making Islam the official religion of the Federation was primarily for ceremonial purposes, for instance to enable prayers to be offered in the Islamic way on official occasions such as the installation of the Yang di-Pertuan Agong, Merdeka Day, and similar occasions. This explanation was accepted by the Rulers and accordingly Article 3 of the Federal Constitution enacts that Islam is the religion of the Federation. In conformity with previous practice the Article goes on to say that other religions may be practised in peace and harmony in any part of the Federation.”

This should end the debate. There is however another important dimension. My colleague makes no mention of Article 3(4), which states, “(4) Nothing in this Article derogates from any other provision of this Constitution”. What this sub-article means is that the position of Islam as the religion of the Federation cannot be read in a manner that detracts from other constitutional provisions. Article 3(1) must be pay homage to other provisions and not the reverse. If Islamic jurisprudence forms part of the constitution, this would render a number of other constitutional provisions to be in conflict with itself. As an example, the Federal List allows Parliament to make laws on “betting and lotaries” and “intoxicating drugs and liquor”.

My colleague also uses section 3 of the Civil Law Act to stress that there is a need to look at the needs of local society. This is exactly the point. Malaysia is not an Islamic state. We have a multi-racial and multi-religious society. To imply that one specific religion represents the tradition of a multi-religious society is inherently illogical. It is for this very reason that our laws are secular.

It is our duty as citizens of this country to uphold the Constitution. It is our duty to speak up against, as Tun Mohamed Suffian (former Lord President) put it, Muslim extremism. We cannot afford to stay silent. We have now come to the point where religion is used to control every aspect of a citizen’s life, including their freedom of thought. As Tunku Abdul Rahman, our father of independence, once said:

“After all these years of trying to build a genuine multiracial and multireligious Malaysia, we are now confronted with a new danger – Islamic fundamentalism … they are now raising all kinds of ideas to Islamise the country, and this is not good. Malaysia cannot practise Islam fully because half of the population is not Muslim. They have a different culture and different ways of life, and they don’t want Islam … In the past, and I know this since I have been through all this since Independence, Malays, Chinese and Indians had no problems because we stuck to our constitutional bargain and we don’t want to impose our values on other people. Today, even the party that I led for so long has done a lot of new things about Islam and want to Islamise the party.”

The Right to Leave the Country and Travel Abroad

The Deputy Home Minister, Datuk Nur Jazlan Mohamed recently said that the issuance of a passport was privilege and not a right. He went on to say that the Immigration Department has the power to bar a citizen from leaving the country if the said person “discredits or ridicules the Government”. As far as the law in Malaysia is concerned, he is partly right.

Right to leave under international law

The right to leave (includes right to a passport and to travel abroad) is well entrenched under international law. It is recognised under, amongst others, Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 10 of the Convention on the Rights of the Child. It is also recognised in most Commonwealth jurisdictions. Though this right is not absolute, it can only be limited under certain circumstances, i.e. to protect national security, public order, public health or morals, or the rights and freedoms of others (see Samuel Lichtensztejn v. Uruguay, Communication No. 77/1980, U.N. Doc. CCPR/C/OP/2 at 102 (1990), Human Right Committee decision)

Is it a recognised right under Malaysian law?

Unfortunately, as the case law stands, it is not a recognised right in Malaysia. This author is of the view that the right to travel abroad should be recognised under Articles 5(1) and 8(1) of the Federal Constitution. The Federal Court in Government of Malaysia v Loh Wai Kong [1979] 2 MLJ 33 (“Loh Wai Kong”) rejected this view and decided that the right to travel abroad and leave Malaysia is not a guaranteed right.

The Federal Court in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301 departed from this position when it held, though obiter dicta, that the right to travel abroad forms part of a person’s liberty under Article 5(1) of the Federal Constitution.

However, the Federal Court very recently in Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin [2016] 2 MLJ 309 reverted to its earlier position in Loh Wai Kong.

Are there any fetters on the Government’s discretion?

Just like any other exercise of discretion, there are limits placed on the Government’s discretion to restrict a person from travelling abroad. As recognised by the Federal Court in Loh Wai Kong, the Government must act bona fide, fairly, honestly and honourably. It cannot act in bad faith or abuse its discretionary power. Such decision is open to challenge in the courts by way of judicial review. Pertinently, the Federal Court recognised (by citing Wade and Philips in Constitutional and Administrative Law (9^th edition) with approval) that there are certain limited circumstances where the Government can restrict a person from travelling abroad: (a) a person for whom an arrest warrant has been issued; (b) a person who has been repatriated at the public expense, until the debt is paid; (c) minor in certain circumstances, such as where a journey is known to be contrary to parental wishes; and (d) on grounds of public interest, to a person whose past or present activities are demonstrably undesirable.

Is discrediting or ridiculing the Government a valid ground?

It is this author’s view that it is not a valid ground. Every citizen in this country is guaranteed the freedom of expression under Article 10(1)(a) of the Federal Constitution. This includes the right to criticize the Government. As Lord Keith in Derbyshire County Council v Tunes Newspapers Ltd [1993] 1 All ER 1011 put it, “it is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism”. This case was cited with approval in two Court of Appeal decisions and in a dissenting Court of Appeal judgment (see the dissenting judgment of David Wong, JCA in Government of State of Sarawak v Chong Chieng Jen (unreported) for a detailed discussion).

Though the Minister explained that reference must be made to the Federal Constitution to determine if an act or statement ridicules or discredits the government, the said explanation is at odds with reality. Raja Azlan Shah, J (as he then was) in Public Prosecutor v Ooi Kee Saik [1971] 2 MLJ 108 said (on the Sedition Act 1948):

“The dividing line between lawful criticism of Government and sedition is this – if upon reading the impugned speech as a whole the court finds that it was intended to be a criticism of Government policy or administration with a view to obtain its change or reform, the speech is safe.”

It cannot be gainsaid that Maria Chin Abdullah was pushing for reforms in the country via democratic means. It falls squarely within the judgment of Raja Azlan Shah, J (as he then was) above and her right to freedom of expression. If what she did amounts to ridiculing and discrediting the government, then the said ground is not merely unreasonable and disproportionate, but also unconstitutional.

Conclusion

What’s essentially happening is an effective curtailment of the freedom of expression via non-legislative means. This is not permitted under Article 10(2) of the Federal Constitution. The restriction of the right to freedom of expression is only permitted by way of legislation. As Raja Azlan Shah, FCJ (as he then was) in Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 noted, “as fundamental rights are not the same as ordinary rights, they can only be suspended or abridged in the special manner provided for it in the Constitution”.

It is fitting to end this article with the words of Brandeis, J in the US Supreme Court case of Whitney v California 274 US 357 (1927) (cited with approval by the Court of Appeal in Muhammad Hilman bin Idham & Ors v Kerajaan Malaysia & Ors [2011] 6 MLJ 507)

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means… They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government.”

(Malay Mail Online, 19.05.2016)

Tips for Backpacking through Europe

Before I continue writing on cities/towns that I have visited, I think it would be even more helpful to provide some general trips on backpacking and travelling in Europe. Bear in mind that most of these tips only apply if your are backpacking, AKA, travelling cheap. 

1. Travel light - It does not matter if your trip is for 1 month, 2 months or even half a year. 1 week of clothes is more than sufficient. Most hostels have laundry services. Even if they don't, directions to nearby laundry services will be provided. If all else fails, there is always the self-service option. Try and get a washing bag before travelling. This video by Allison Levine is helpful, https://www.youtube.com/watch?v=Ox9jMZyPwB8
2. Pre-booking transport - This is the tricky part. Booking your train, bus, ferry and air tickets within Europe earlier will result in the same being cheaper. For example, I got all my train tickets in Italy at trenitalia for 9.99 euros per person. This included a train from Bari to Rome, a 6 hour ride! My bus and train tickets for other countries were generally cheaper than those who bought tickets in the station. However, if you have a bigger budget, I would recommend getting the Euro-rail pass which allows you to hop on to any train to get to your next destination (with a reservation fee). This injects a great amount of flexibility, which enables spontaneous decisions. You can never get the full picture from online research or even from a friends personal experience. It is only when you are physically there that the true picture unfolds. You might feel like staying on longer or leaving earlier. You might discover places to visit which you never found on the internet. The weather might be bad on the day you planned to hike a mountain. A flexible itinerary caters for such instances, albeit at a larger cost.
3. Overnight travel - Try and catch a night bus/train when travelling from one country to the other. This way, you get to save on accommodation for one night
4. Hostels - Unless you have good couch-surfing options, get a dorm in a hostel! This is where you will make friends and share travel experiences! If you are travelling with your partner and prefer privacy, it is much cheaper to get a private room in a hostel (compared to other accommodation options). Be sure to check reviews before choosing a hostel and try and get one with a decent kitchen.
5. Daily budget (excluding accommodation) - I generally capped my daily expenditure to 30 euros (food, internal transportation, tickets). However, I rarely spent that much in a day. You can easily survive with 5 euros for a meal, even in countries such as France and Italy. For breakfast, get cereal and milk or a loaf of bread and keep them with you. A set of cereal and milk costs about 4 to 5 euros and can easily last you for 3 days. Try and cook your dinner meals. Most hostels should have a decent kitchen. Sandwiches and pasta are cheap cooking options. A pasta meal with some meat will only cost about 3 euros. If you are too lazy to cook, get food from the supermarket. By avoiding the 5 euro cap for a meal, you would also have the luxury of splashing out on one (if not more) good meal in each city.
6. Weather - If you are planning to visit scenic places in which beauty depends on the weather, try not to plan too long ahead. You might end up staring at clouds or mist instead of a beautiful mountain peak. If possible, try and book tickets to such places around a week in advance so you have reliable weather forecast information. If you have to book much earlier in advance, check the weather forecast anyway. 
7. Free walking tours - Always try and catch a free walking tour on the first day of arrival in a city. It gives you a good idea on how to travel within the city and also which locations you must visit. Additionally, you get to ask the tour guide any question at the end of the tour (the tour guides are extremely friendly).
8. City pass - The first thing to do when you arrive should be to head to the tourist centre. Each city generally has a daily or weekly pass. This may include access to tourist spots. Just speak to the guide and tell them what your rough plans are. These places generally sell maps as well, but most hostels provide free maps so just wait until you get to your hostel
9. Pre-drinks - Alcohol in supermarkets are really cheap! You can easily get a decent bottle of wine for less than 4 euros in most places. Alcohol in bars and clubs are very expensive. Its much better to pre-drink in the hostel before heading out.
10. Walking - Always try and walk whenever possible. This way you can discover hidden back routes and roads which might lead to unknown gems.
11. Pub crawls - Try and go for a few pub crawls during your trip. It is a great way for making new friends (unless you are really unfortunate). They are generally reasonably priced and often include a short period of unlimited alcohol. If it does not, pre-drink! Just watch out for absinthe shots!
12. Planning ahead - While being spontaneous is great, it does not apply all the time. Be sure to have a rough idea on how to get to your hostel before you arrive at that particular city. Find out how to get to the relevant station before your departure date. Have all relevant addresses and details written down somewhere
13. Languages - Try and learn to express basic phrases in the local language. This should, at the very least, include "hello" and "thank you". Trust me, one word can go a long way.
14. Stay safe - Well, needless to say, always be alert and keep your belongings close to you. Bring a padlock and store your valuables safely in the hostel. Theft in hostels are not unheard of.

I apologize if I missed out anything. Will update the list if anything else comes to mind. On a more general note, I believe everyone must try travelling solo at some point in time. It was a real eye opener and I learnt so much in a short span of time. It is only through solo-travelling that you will get to connect within at a much deeper level and reach limits you never knew existed.

Europe trip - 2.5 days in Paris

50 days, 9 countries, 17 cities/towns, countless friends and unforgettable memories. That pretty much sums up my Europe trip in a sentence. A trip I had planned since law school. A trip I finally realised after years of dreaming. It’s now time to pen down my travel experiences.

The first question I always get is this: how much did the whole trip cost??!! It cost me approximately RM16,000, which includes my return flight tickets to Paris and back. This was when the MYR was valued at about RM.0.22 to 1 euro. I believe I can safely say that I managed to pull it off with a pretty low budget.

Now, this leads to further questions. Where did you stay? What did you do? How did you travel around? Well I could just lay it down for you in table. That is not what I am going to do. Instead, I am going to put you through the ordeal of having to read a series of write-ups on each city/town I visited. Of course, this is assuming that you have a very curious mind and plan to travel Europe one day as well. Or perhaps you are just really bored and enjoy scrolling through beautiful and breath taking pictures. Kidding (partly).

Alright so let’s get to it! My long awaited flight departed from Kuala Lumpur on the 11th of August. I left to Europe with the most annoying person on earth, whom is fortunately my best friend. Kidding (partly). We arrived in Paris at 6.40 am on the 12th of August. We were extremely fortunate to have had a place to stay in Paris. We stayed with Inti-Loys, a very dear friend, whose apartment is about a 40 minute walk from the city center.

We had about 3.5 days in Paris since our train to Interlaken, Switzerland departs on the 15th of August. I would highly recommend getting 10 Metro tickets which cost 14.10 euros (it costs 1.70 euros each if bought individually). One ticket allows you to transfer between the metro, trams and buses for 1.5 hours. It is possible, and even delightful, to walk around central Paris. In short I don't think there is much need for public transportation if you stay in or close to central Paris. You will only need them if you are running late, feel lazy, or just too drunk to walk (in which event it would be too late for the metro anyway).

A good tip for any city: always try and catch a free walking tour on the first day of arrival. It gives you a good idea on how to travel within the city and also which locations you must visit. Additionally, you get to ask the tour guide any question at the end of the tour (the tour guides are extremely friendly). This is Place St. Michel, where the Sandemans tour in Paris starts

The tour lasts about 3 hours and it takes you through the main locations in Paris. This includes the Notre Dame, Tuileries Gardens, Place de la Concorde, Arc de Triomphe, the Louvre and many more. However, the tour only takes you through these places to explain about the history and details of such places. It does not include the interiors of the same. Here are pictures taken during the tour

After the tour, you would have an informed idea of where you would like to visit. Trust me, if you are going to pay over 10 euros to visit a place, better be sure its worth it. The tour ends nearby the famous shopping streets of Paris (rue de passy), so we took he chance to do some window shopping. Two guys, so it lasted for hardly 15 minutes.

The louvre was our next destination. A few tips here. Try and visit the Louvre on a Wednesday or Friday as it opens until 9.45pm. Many tourist do not know about this and tend to leave by 6pm. Enter the Louvre at around 5.30pm and the crowd will slowly start to subside. If you visit the Louvre anytime before that, the queue and the crowd inside will eat a large chunk of your time. The Louvre has thousands of paintings. It will be impossible to look at each of them even if you spend the whole day. Decide on which paintings you want to see and spend your time on these selected artworks. This way, you will really get to appreciate the artworks and about 4 hours would be sufficient. Here you go, the famous Mona Lisa (be ready to wrestle with countless tourist to even glance at it if you are in during peak hours)

We came back after that and had an early night as we had a full day trip to Etretat the next day (will post up an article just on this place). We spend the 2nd night having dinner in the garden in front of the Eiffel tower with Inti. Truly amazing and a must do. Wine, cheese, bread, meat, breath-taking view and good company.

We decided to take the third day in a slower phase. We started of early with the Eiffel tower. The queue was quite short at 8.30am. We chose to walk up 2 floors and then take the lift to the top. Magnificent views of Paris.

Next stop was the Pere Lachaise Cemetary, the largest cemetery in Paris. Would not have spent much time here if given the second chance, but it was interesting in its own way.

We decided to head to the Catacombs next, where we had to queue for about 2 hours to get in (12 euros to enter). That's what happens if you head to a tourist spot after 10am. It was well worth the wait (perhaps not the entire wait) and money.

We got back early that evening to cook for dinner and to prepare for a very long and awesome night with Inti and his amazing friends. We got back at 6am and had a train to catch later at 6pm. Let's just say that our last day in Paris was spent travelling in our dreams. We made a quick visit to the famous Love Bridge (in front of the Louvre) so my friend could place a lock (for his girlfriend)

All in all, I felt Paris was a great city despite many opinions to the contrary. However, it is a city to be explored with someone special. It was the only city during my travels which I felt an aura of romance permeating through the environment. Perhaps the term "city of love" had a psychological impact. But I think its more than that. A big thanks to Inti (3rd from left) for being a absolutely fantastic host! Next write-up will be on the beautiful town of Etretat in Normandy.

Did the Federal Court Err in Knocking Out the Transgender Case?

Introduction

1.    I respectfully disagree with the said decision. The crux of my reasoning is this, the Federal Court had failed to distinguish between two distinct concepts: the existence of a power and the exercise of such power. In essence, the Federal Court held that a constitutional challenge on the validity of a law must be brought directly to the Federal Court.

2.    As an example: The lord of Winterfell has judicial power to hear petitions in Winterfell as he is a delegate of the Iron Throne. He hears a petition in Winterfell and declares a marriage binding when it was not consummated (custom requires marriages to be consummated). The issue here is one of exercise of power. He had the power to hear it as it was in Winterfell, but exercised the power wrongly. Second scenario: the Lord of Winterfell hears a petition in Dorne and declares a marriage null and void as it was not consummated. What is the issue here? It is one of existence of such power, as he had power in Dorne to even begin with. Simple to grasp? Apparently not. Time to move on to the legal jargons.

The declaration sought

1.    The declaration sought by the Respondents was that “Section 66 of the Selangor Syariah Criminal Enactment 1992 is inconsistent with Articles 8(2), 10(1)(a), 9(2) and 5(1) of the Federal Constitution and is therefore void and unconstitutional”.

2.    Two things are borne out from the above, first, the declaration sought was one that the impugned law was inconsistent with the Federal Constitution. Secondly, no mention what so ever was made to the power of the State in enacting the impugned law.

3.    In simple words, the Respondents position was this: the State had the power to enact the impugned law, but that power had been exercised unconstitutionally as the impugned law contravenes certain provisions in the Federal Constitution.

Powers of the High Court

4.    That the High Court has the power to declare any law unconstitutional, was expressly stated in the Federal Court decision of Ah Thian v Government of Malaysia [1976] 2 MLJ 112 (“Ah Thian”). This was the very case that the Federal Court in the Transgender case had relied on to say otherwise. The relevant part of the judgment is reproduced below:

“Under our Constitution written law may be invalid on one of these grounds:

(1) in the case of Federal written law, because it relates to a matter with respect to which Parliament has no power to make law, and in the case of State written law, because it relates to a matter which respect to which the State legislature has no power to make law, article 74; or

(2) in the case of both Federal and State written law, because it is inconsistent with the Constitution, see article 4(1); or

(3) in the case of State written law, because it is inconsistent with Federal law, article 75.

The court has power to declare any Federal or State law invalid on any of the above three grounds.

The court's power to declare any law invalid on grounds (2) and (3) is not subject to any restrictions, and may be exercised by any court in the land and in any proceeding whether it be started by Government or by an individual.”

5.    As noted above, the Transgender case concerned ground (2) (inconsistency with the Federal Constitution). It is pertinent to note three important phrases from the last paragraph, “not subject to any restriction”, “exercised by any court” and “any proceeding”. This alone should suffice to answer the question on whether a High Court can declare a law to be unconstitutional in a judicial review proceeding. Unfortunately the very same excerpt of the judgment was relied upon by the Federal Court in the Transgender case to say otherwise.

6.    The question in Ah Thian was whether Section 5 of the Firearms (Increased Penalties) Act 1971 contravened Article 8(1) of the Federal Constitution. This is similar to the declaration sought in the Transgender case. This is what Federal Court said in Ah Thian:

“Therefore clause (4) of article 4 and clause (1) of article 128 do not apply and the point may be raised in the ordinary way in the course of submission, and determined in the High Court, without reference to the Federal Court, and there is no need for leave of a judge of the Federal Court.”

7.    The passage above should put any doubts to rest. It is only when ground (1) is invoked that the special procedure laid down in Articles 4(3), 4(4) and 128 of the Federal Constitution come into play.

8.    The High Court’s inherent power to declare any law unconstitutional in a judicial review proceeding was clearly explained by the Court of Appeal in the first reported case concerning the new provision on judicial review. The decision is reported as Sivarasa Rasiah v Badan Peguam Malaysia [2002] 2 MLJ 413 and concerned the constitutionality of Section 46A of the Legal Profession Act 1976.

The Federal Court decision

9.    The Federal Court then relied on the case of Abdul Karim Bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171. As clearly expressed in the decision of the court, this case concerned the existence of the State’s power in making the relevant law. The relevant line reads:

“It is the contention of the applicant that the State Assembly is not empowered to make laws with respect to a matter of disqualification.”

10. All the apex court decisions cited by the Federal Court concerned the power of Parliament and the State to make laws. In particular, it goes to the question of the existence of the power under Article 74 and the 9^th Schedule of the Federal Constitution, which is why Article 4(3) and 4(4) comes into play in those cases. None of them talk about the exercise of such power.

11. The Federal Court then made the following observation:

“What the Respondents attempted to do was to limit the legislative powers of the State Legislature, by saying that despite the powers to legislate on matters on Islamic law having been given to the State legislature by Article 74 of the Federal Constitution read with List II in the Ninth Schedule to the Federal Constitution, that legislation must still comply with the provisions on fundamental liberties in Articles 5(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution.”

12. The above was not even an issue to begin with. In fact, as conceded by the Federal Court, the powers of the State to legislate on Islamic law stems from Article 74 of the Federal Constitution. Article 74(3) reads:

“(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.”

13. Article 4(1) of the Federal Constitution reads:

“4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”

14. I don’t think the above two provisions can be any clearer. Islamic law is State law. As such, it must be consistent with the provisions of the Constitution (same applies to federal law). The question on whether it has to comply with Part II of the Federal Constitution is a non-issue. This was only made an issue when the Appellants had applied for leave to appeal to the Federal Court.

15. Any argument using Article 3 of the Federal Constitution (Islam as the religion of the Federation) to posit that Islam is above Part II of the Federal Constitution does not hold any ground. Sub-article (4) of the same Article provides:

“(4) Nothing in this Article derogates from any other provision of this Constitution.”

16. It is very sad and disturbing that we have now come to a point where express constitutional provisions entrenching the principle of constitutional supremacy are being mutilated. It is fitting to end this article with the words of Suffian, Lord President, in Ah Thian, which is still being used by the courts with approval (the irony):

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”

Sacking of DPM runs contrary to Federal Constitution

The Cabinet of Ministers are elected pursuant to Article 43 of the Constitution by the Yang di-Pertuan Agong on the advice of the Prime Ministers. Article 43(6) of the Constitution provides that all Ministers shall take and subscribe in the presence of the YDPA, an oath of office and allegiance and the oath of secrecy as set out in the sixth schedule of the Constitution. This is the oath all Ministers take before exercising the functions of their office:

“I, ……………….., having been elected (or appointed) to the office of ……………….. do solemnly swear (or affirm) that I will faithfully discharge the duties of that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.”

In essence, Ministers owes their allegiance, above all, to their country and to the Constitution. So, what did the former Deputy Prime Minister (“DPM”) do? He spoke up for the people of this country. He essentially reiterated what all of us have been saying for the past few months. Most importantly, he (actually) stood up for the fundamental right of freedom of speech and equality, which occupies a sacrosanct position in our Constitution. He carried out his constitutional duty as a Minister and as a Parliamentarian in representing the voice of his constituents. Yes, he disagreed with the leader of the Cabinet, but he did so because of his overriding allegiance and duty to the country and the Constitution. For that, he was removed from his position.

Where were all the other Ministers when the 1MDB fiasco blew out of proportion? Where were all the other Ministers when freedom of speech was massacred with the suborning of all forms of media to the tyranny of the government? Where were all the Ministers when their fellow compatriots were sacked for upholding their oath of allegiance? Shame on all of you. You have let this country down. You sat by and watched while the Constitution was being trampled on. You sat by and watched while our beloved country was, and still is, plundered of its citizen’s money. My dear sirs, you have spat on the oath of allegiance which you sworn to carry out, and sadly, you are still doing so as I write.

The Constitution has been attacked and trampled on many occasions. One occasion which no one will ever forget was the 1988 judicial crisis. Today marks a similar occasion. A day where freedom of speech has been rendered illusory, a day where people who stood up for the Constitution and their beloved country were struck down with the hammer of injustice, a day where our Constitution bled profusely, and most sadly, a day where democracy was laid waste on.

The suborning of the members of the opposition and the judiciary are now insufficient to keep the hammer of tyranny firm in place. Today, even dissenters within the government, with high ranking post, are being thrown out in broad daylight for carrying out their constitutional functions. This, ladies and gentleman, is the classic form of dictatorship and tyranny. It is only the means of dictatorship that has changed over the course of time, but not the concept in itself.