What else is unconstitutional in Malaysia? (RPK)

A fine piece from RPK ... http://malaysia-today.net/mtcolumns/no-holds-barred/45147-what-else-is-unconstitutional-in-malaysia

Ok, my quota of time for Malaysian politics has been reached :-)

What else is unconstitutional in Malaysia? 

Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom said it is unconstitutional for a person to be homosexual in Malaysia. “In reality, in the country’s constitution it is not allowed, including sections 377(a), (b), (c) and (d) which prohibit sexual relations between two men,” said Jamil, who is in charge of Islamic affairs and head of the Malaysian Department of Islamic Development (Jakim).

NO HOLDS BARRED

Raja Petra Kamarudin

Actually, if the minister really wants to follow the Federal Constitution of Malaysia, there are many more things that are unconstitutional, and being a homosexual is certainly not one of them although he can argue that it is against the law.

But then, being against the law (meaning: it constitutes a crime) does not make it unconstitutional. For example, raping your own mother or sodomising your own father is also a crime. But that does not make them unconstitutional. So is robbing a bank, murdering your wife, cheating on your income tax, taking bribes, misusing public funds to pay for your wife’s lavish shopping, etc. They are all crimes but can’t quite be called unconstitutional.

The minister, being not that intelligent and downright ignorant, as most Malaysian ministers are, does not appear to know the difference between what is unconstitutional and what is a crime.

Anyway, if you refer to some of the Articles in the Constitution below, you can see that there are many practices and policies in Malaysia that are unconstitutional (and at times opposed to Islam as well). Maybe my learned minister would like to talk about these as well.

Detaining someone without due process of the law is unconstitutional as per Article 5. And to use ‘emergency laws’ that waive the need for due process is unconstitutional when Malaysia is not facing any emergency and whatever emergency it did face in the past (such as The Emergency, May 13, Konfrontasi, etc.) have now ended (which means the emergency laws no longer apply). This is like still using WW1 or WW2 emergency laws when WW1 and WW2 have ended a long time ago.

Discrimination, quotas, preferences, etc., based on race or religion is unconstitutional as per Article 8. You can argue that the New Economic Policy (NEP) overrides the Constitution but Article 4 does not allow this. Anyway, the NEP was not a law passed by Parliament and that is why it is called ‘the aspirations (hasrat) of the NEP’. It is merely an aspiration and not a law. Hence, to force Malaysians to comply with the NEP violates the Constitution.

Asking for the citizenship of any Malaysian to be withdrawn is unconstitutional as per Article 9. So Umno should stop asking for the citizenship of Ambiga and others to be withdrawn.

Malaysians have the liberty to express their opinion as per Article 10 even if they wish to opine that religion is bullshit, God does not exist, or that the monarchy is outdated and corrupt and should be abolished in favour of a Republic of Malaysia. Opinions are allowed and expressing them is not a crime.

Malaysians have the liberty to believe in any religion they want to or to reject religion totally under Article 11. Even if they wish to reject all forms of religion and become atheists, that is their constitutional right. The only thing the Constitution forbids is to propagate these beliefs to Muslims. However, if that person has declared that he/she no longer believes in God, then that would make him/her an apostate and, technically, that person would no longer be a Muslim. Therefore, propagating to ex-Muslims would not constitute a crime since they have on their own freewill become apostates.

Setting up institutions of learning exclusive to any one race is unconstitutional according to Article 12.Therefore, UiTM, according to the constitution, must open its doors to all races (but whether they would want to enter UiTM is another matter altogether).

Yes, if you want to talk about what is unconstitutional then let us talk about what is unconstitutional. And being gay is not one of them. The above, however, are. But does the minister understand this? Most likely not! Or else he would not have been made a minister. Instead, he would have become a Blogger like me.

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PART II - FUNDAMENTAL LIBERTIES

Article number: 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.

• (2) The validity of any law shall not be questioned on the ground that -

        • (a) it imposes restrictions on the right mentioned in Article 9 (2) but does not relate to the matters mentioned therein; or

        • (b) it imposes such restrictions as are mentioned in Article 10 (2) but those restrictions were not deemed necessary or expedient by Parliament for the purposes mentioned in that Article.

• (3) The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or -

       • (a) if the law was made by Parliament, in proceedings between the Federation and one or more States;

       • (b) if the law was made by Legislature of a State, in proceedings between the Federation and that State.

• (4) Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall not be commenced without the leave of a judge of the Supreme Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause.

Article number: 5

• (1) No person shall be deprived of his life or personal liberty save in accordance with law.

• (2) Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

• (3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

• (4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority:

Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day.

• (5) Clauses (3) and (4) do not apply to an enemy alien.

Article number: 8

• (1) All persons are equal before the law and entitled to the equal protection of the law.

• (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

• (3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of the State.

• (4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

• (5) This Article does not invalidate or prohibit -

        • (a) any provision regulating personal law;

        • (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion;

        • (c) any provision for the protection, wellbeing or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;

        • (d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;

        • (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;

        • (f) any provision restricting enlistment in the Malay Regiment to Malays.

Article number: 9

• (1) No citizen shall be banished or excluded from the Federation.

• (2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.

• (3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.

Article number: 10

• (1) Subject to Clauses (2), (3) and (4) -

      • (a) every citizen has the right to freedom of speech and expression;

      • (b) all citizens have the right to assemble peaceably and without arms;

      • (c) all citizens have the right to form associations.

• (2) Parliament may by law impose -

      • (a) on the rights conferred by paragraph (a) of Clause (1),such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;

      • (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, or public order;

      • (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.

• (3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.

• (4) In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.

Article number: 11

• (1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.

• (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.

• (3) Every religious group has the right -

        • (a) to manage its own religious affairs;

        • (b) to establish and maintain institutions for religious or charitable purposes; and

        • (c) to acquire and own property and hold and administer it in accordance with law.

• (4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

• (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.

Article number: 12

• (1) Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth -

      • (a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or

      • (b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).

• (2) Every religious group has the right to establish and maintain institutions for the education of children in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law; but it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.

• (3) No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.

• (4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.