Malaysia Uncut

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Malaysian Constitution Getting Hijacked?

Subashini decision – constitution being rewritten
by Malay Law Student

Not only is the majority decision in R Subashini case wholly unacceptable to all right-thinking Malaysians – the decision has wider and more worrying long-term implications for the direction of the country.

In the writings of Montesquieu and AV Dicey, whose works underpin the concept of democracy, the judiciary is conceived of as the final bulwark of justice upon which the hapless citizen can depend when he or she is pitted against the seemingly endless resources of the state. Moreover, the judiciary is the arm of government charged with upholding the spirit and purpose of the constitution.

Our Federal Constitution clearly limits the jurisdiction of the Syariah Court to “persons professing the religion of Islam”. [Sch. 9, List 2 (1), Federal Constitution] By expanding the jurisdiction of the Syariah Court to non-Muslims, the decision of the majority of the Court of Appeal in the Subashini case turns the traditional view of the role of the judiciary on its head.

Here, we have a situation where the judiciary is performing the most fantastic of legal gymnastics in order to side with the state, going as far as to adopt a highly dubious interpretation of the very constitution it was meant to protect. So severe are the possible implications of this interpretation that it would be reasonable to view the decision in Subashini as an attempt to rewrite our constitution.

Irrespective of one’s preferences or personal beliefs, it is a fact that were it not for the constitution, most of our structures of governance including the judiciary and the syariah courts themselves would have nothing upon which to base their legitimacy and authority.

Thus, to establish a precedent where a fundamental provision of the constitution affecting a large proportion of the population is so glaringly contradicted in such a casual fashion could be the start of a very slippery slope – one with the potential to threaten the very foundations of our nation.

In view of this, judges and legislators must ask some harsh questions of themselves. Principally, they must decide whether they are prepared to forgo narrow, communal interests for the good of the nation.

A judge has a duty which is owed to all Malaysians and that duty is to fearlessly uphold the principles of the constitution, even if it conflicts with his or her personal or religious beliefs. Currently, Malaysia possesses far too few judges of this calibre.

Overall, we can draw two points from the majority decision in this case. First, it typifies why the Bar Council’s call for the establishment of a Judicial Appointments Committee must not go unheeded. Second, the disaster that is the 1988 amendment to Article 121(1) of the Federal Constitution must be rectified to enable our judiciary to regain its distant integrity.

Source: Malaysiakini

Monday, March 19, 2007 - Posted by | Commentary, Islam, Issues, News, Politics


  1. What do you expect? The judiciary in Malaysia has systematically ignored black letter law in favour of “development justice” whenever a decision has to be made between an individual and the Govt or about Islam. This will continue until we end up a legal basketcase like Pakistan, another Islamic paradise on earth. If you want to practice law, be sure to get ‘portable qualifications’ and move overseas.

    Comment by Goodman | Wednesday, March 21, 2007 | Reply

  2. It is instances like these that undermine our country’s legal credibility. Still, it is up to the current law students to remedy that after we graduate, eh? Provided that we are still that idealistic there then.

    Comment by Chibster | Friday, April 13, 2007 | Reply

  3. hardware&software engg.

    Comment by satya | Saturday, July 21, 2007 | Reply

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    Comment by satya | Saturday, July 21, 2007 | Reply

  5. Judges? They won’t bite the hand that feeds them.

    Comment by feringhee | Monday, July 30, 2007 | Reply

  6. List of racial discriminations in Malaysia, practiced by government as well as government agencies. This list is an open secret. Best verified by government itself because it got the statistics.

    This list is not in the order of importance, that means the first one on the list is not the most important and the last one on the list does not mean least important.

    This list is a common knowledge to a lot of Malaysians, especially those non-malays (Chinese, Ibans, Kadazans, Orang Asli, Tamils, etc) who were being racially discriminated.

    Figures in this list are estimates only and please take it as a guide only. Government of Malaysia has the most correct figures. Is government of Malaysia too ashamed to publish their racist acts by publishing racial statistics?

    This list cover a period of about 50 years since independence (1957).

    List of racial discriminations (Malaysia):

    (1) Out of all the 5 major banks, only one bank is multi-racial, the rest are controlled by malays

    (2) 99% of Petronas directors are malays

    (3) 3% of Petronas employees are Chinese

    (4) 99% of 2000 Petronas gasoline stations are owned by malays

    (5) 100% all contractors working under Petronas projects must be bumis status

    (6) 0% of non-malay staffs is legally required in malay companies. But there must be 30% malay staffs in Chinese companies

    (7) 5% of all new intake for government army, nurses, polices, is non-malays

    (8) 2% is the present Chinese staff in Royal Malaysian Air Force (RMAF), drop from 40% in 1960

    (9) 2% is the percentage of non-malay government servants in Putrajaya. But malays make up 98%

    (10) 7% is the percentage of Chinese government servants in the whole government (in 2004), drop from 30% in 1960

    (11) 95% of government contracts are given to malays

    (12) 100% all business licensees are controlled by malay government e.g. Approved Permits, Taxi Permits, etc

    (13) 80% of the Chinese rice millers in Kedah had to be sold to malay controlled Bernas in 1980s. Otherwise, life is make difficult for Chinese rice millers

    (14) 100 big companies set up, managed and owned by Chinese Malaysians were taken over by government, and later managed by malays since 1970s e.g. MISC, UMBC, UTC, etc

    (15) At least 10 Chinese owned bus companies (throughout Malaysia, throughout 40 years) had to be sold to MARA or other malay transport companies due to rejection by malay authority to Chinese application for bus routes and rejection for their application for new buses

    (16) 2 Chinese taxi drivers were barred from driving in Johor Larkin bus station. There are about 30 taxi drivers and 3 are Chinese in October 2004. Spoiling taxi club properties was the reason given

    (17) 0 non-malays are allowed to get shop lots in the new Muar bus station (November 2004)

    (18) 8000 billion ringgit is the total amount the government channeled to malay pockets through ASB, ASN, MARA, privatisation of government agencies, Tabung Haji etc, through NEP over 34 years period

    (19) 48 Chinese primary schools closed down since 1968 – 2000

    (20) 144 Indian primary schools closed down since 1968 – 2000

    (21) 2637 malay primary schools built since 1968 – 2000

    (22) 2.5% is government budget for Chinese primary schools. Indian schools got only 1%, malay schools got 96.5%

    (23) While a Chinese parent with RM1000 salary (monthly) cannot get school-text-book-loan, a malay parent with RM2000 salary is eligible

    (24) 10 all public universities vice chancellors are malays

    (25) 5% – the government universities lecturers of non-malay origins had been reduced from about 70% in 1965 to only 5% in 2004

    (26) Only 5% is given to non-malays for government scholarships over 40 years

    (27) 0 Chinese or Indians were sent to Japan and Korea under “Look East Policy”

    (28) 128 STPM Chinese top students could not get into the course that they aspired e.g. Medicine (in 2004)

    (29) 10% place for non-bumi students for MARA science schools beginning from year 2003, but only 7% are filled. Before that it was 100% malays

    (30) 50 cases whereby Chinese and Indian Malaysians, are beaten up in the National Service program in 2003

    (31) 25% is Malaysian Chinese population in 2004, drop from 45% in 1957

    (32) 7% is the present Malaysian Indians population (2004), a drop from 12% in 1957

    (33) 2 million Chinese Malaysians had emigrated to overseas since 40 years ago

    (34) 0.5 million Indian Malaysians had emigrated to overseas

    (35) 3 million Indonesians had migrated into Malaysia and became Malaysian citizens with bumis status

    (36) 600000 are the Chinese and Indian Malaysians with red IC and were rejected repeatedly when applying for citizenship for 40 years. Perhaps 60% of them had already passed away due to old age. This shows racism of how easily Indonesians got their citizenship compare with the Chinese and Indians

    (37) 5% – 15% discount for a malay to buy a house, regardless whether the malay is poor or rich

    (38) 2% is what Chinese new villages get compare with 98% of what malay villages got for rural development budget

    (39) 50 road names (at least) had been changed from Chinese names to other names

    (40) 1 Dewan Gan Boon Leong (in Malacca) was altered to other name (e.g. Dewan Serbaguna or sort) when it was being officially used for a few days. Government try to shun Chinese names. This racism happened in around year 2000 or sort

    (41) 0 churches/temples were built for each housing estate. But every housing estate got at least one mosque/surau built

    (42) 3000 mosques/surau were built in all housing estates throughout Malaysia since 1970. No churches, no temples are required to be built in housing estates

    (43) 1 Catholic church in Shah Alam took 20 years to apply to be constructed. But told by malay authority that it must look like a factory and not look like a church. Still not yet approved in 2004

    (44) 1 publishing of Bible in Iban language banned (in 2002)

    (45) 0 of the government TV stations (RTM1, RTM2, TV3) are directors of non-malay origins

    (46) 30 government produced TV dramas and films always showed that the bad guys had Chinese face, and the good guys had malay face. You can check it out since 1970s. Recent years, this tendency becomes less

    (47) 10 times, at least, malays (especially Umno) had threatened to massacre the Chinese Malaysians using May 13 since 1969

    (48) 20 constituencies won by DAP would not get funds from the government to develop. Or these Chinese majority constituencies would be the last to be developed

    (49) 100 constituencies (parliaments and states) had been racistly re-delineated so Chinese voters were diluted that Chinese candidates, particularly DAP candidates lost in election since 1970s

    (50) Only 3 out of 12 human rights items are ratified by Malaysia government since 1960

    (51) 0 – elimination of all forms of racial discrimination (UN Human Rights) is not ratified by Malaysia government since 1960s

    (52) 20 reported cases whereby malay ambulance attendances treated Chinese patients inhumanely, and malay government hospital staffs purposely delay attending to Chinese patients in 2003. Unreported cases may be 200

    (53) 50 cases each year whereby Chinese, especially Chinese youths being beaten up by malay youths in public places. We may check at police reports provided the police took the report, otherwise there will be no record

    (54) 20 cases every year whereby Chinese drivers who accidentally knocked down malays were seriously assaulted or killed by malays

    (55) 12% is what ASB/ASN got per annum while banks fixed deposit is only about 3.5% per annum

    There are hundreds more racial discriminations in Malaysia to add to this list of “colossal” racism. It is hope that the victims of racism will write in to expose racism.

    Malaysia government should publish statistics showing how much malays had benefited from the “special rights” of malays and at the same time tell the statistics of how much other minority races are being discriminated.

    Hence, the responsibility lies in the Malaysia government itself to publish unadulterated statistics of racial discrimination.

    If the Malaysia government hides the statistics above, then there must be some evil doings, immoral doings, shameful doings and sinful doings, like the Nazi, going on onto the non-malays of Malaysia.

    Civilized nation, unlike evil Nazi, must publish statistics to show its treatment on its minority races. This is what Malaysia must publish……….

    We are asking for the publication of the statistics showing how “implementation of special rights of malays” had inflicted colossal racial discrimination onto non-malays.

    Comment by human book | Friday, September 14, 2007 | Reply

    • Police practice double standards. In kampungs, villagers are not issued traffic summons for not wearing safety helmets. Kampung folks, young ( underaged ) and old can even be seen riding their motorbikes without helmets right in front of a police station or passing police patrol car. Some even ride their bikes carrying more than 2 on the bikes. If we are allowed to check police reports, you will find that most of the traffic summons are from densely populated areas of non Malays. The police target these places more and ignore the rural towns where Malay concentration is high. 99% of Mat rempits or road hooligans are Malays, those caught are given special rehabilitation programmes without any prosecution from the law, yet non malay youths caught for minor offences face police action.

      Comment by redfaceindian | Saturday, February 26, 2011 | Reply

  7. Now a days Hindus & other minorities suffering a lot in Malayasia. Govt. should ensure that no human right voilation occure. Don’t create another Pakistan on the earth.

    Comment by Jeet Bhargava | Wednesday, November 28, 2007 | Reply

    • Its sad we have corrupted Indian politicians especially in MIC, who play along with the atrocities of their BN counterparts UMNO. Things started to look bad for the Indians when Samyvellu was the leader of MIC and Mamak Mahathir the PM ( the No.1 racist in Malaysia ). That’s why the Indians have to be united and reject MIC and vote for a strong opposition which at least will listen and protect, if not provide for their rights.

      Comment by redfaceindian | Saturday, February 26, 2011 | Reply

  8. Malaysia is covering up this unjustice with Ad campaigns of communal harmony and beauty of diversity. At least now the world can see the true colors of malasia. We have to re-run the ad campaign as “Malaysia Ugly Asia”. Unless they start to treat every citizen equal and respect civil liberties their credibility won’t be restored.

    Comment by Civil Rights | Monday, December 10, 2007 | Reply


    Comment by Nita | Tuesday, December 11, 2007 | Reply

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    Comment by malaysian | Friday, February 15, 2008 | Reply

  11. A develop country cannot have this ugly bias issue.. feel sad to see those facts..

    Comment by Funsapple | Tuesday, March 11, 2008 | Reply

  12. It is called “development justice” i.e. judges too scared to give proper verdicts for fear of offending the BN Govt. In the end the judges become the slaves of the politicians. The Law and the rakyat suffer when that happens.

    Comment by Gina | Wednesday, May 7, 2008 | Reply

  13. Hubungan dan Konspirasi Anwar-Najib -Malaysiakini
    Sila layari
    Nampaknya sejak laporan kes liwat Anwar Ibrahim dibuat 28 Jun lalu, bukan sahaja Anwar yang bersusah payah mempertahankan dirinya malah juga kini Najib dan Rosmah pula yang semakin tidak nyenyak tidur.
    Pertembungan diantara Anwar-Najib untuk menjadi Perdana Menteri semakin hebat. Daripada maklumat yang diperolehi, pembantu kepada Anwar Ibrahim, Saiful Bukhari telah ditangkap oleh polis dan dipaksa untuk membuat laporan polis terhadap Anwar di atas tuduhan liwat.
    Krisis telah bermula. Najib yang semakin tersepit di atas pengakuan bersumpah yang dibuat oleh Raja Petra Kamarudin terpaksa menggunakan taktik kotor sebegini untuk menjatuhkan maruah Anwar Ibrahim.
    Melihat kepada senario ini, ada pemerhati politik berpandangan bahawa isu liwat ini sebenarnya mempunyai serampang dua mata iaitu untuk menjatuhkan Anwar-Pembangkang dan Najib. Jika ramalan dan telahan ini betul bermakna ada pihak ketiga yang bermusuhan dengan kedua-dua mereka iaitu Anwar dan Najib yang mencari kesempatan untuk memburuk-burukkan pemimpin ini.
    Logiknya ada apabila Anwar semakin hampir untuk merampas Putrajaya dan Najib dikatakan mungkin akan bertanding jawatan Presiden Umno. Maka dari teori ini anda mungkin boleh berfikir siapa di belakang isu ini ……….(untuk menambahkan koleksi orang-orang yang mungkin terlibat di belakang Saiful – sebelum ini orang tuduh Najib sekarang tambah seorang atau dua lagi )…SIAPAKAH ORANG ITU?
    Penasihat PKR pernah mendakwa bahawa Mohd Saiful Bukhari Azlan beberapa kali bertemu Rosmah Mansor, selain rapat dengan Datuk Seri Najib Razak dan pegawai khasnya Khairil Anas Yusof.
    “Saiful Bukhari mempunyai hubungan yang rapat dengan Khairil Anas dan Najib. Beliau bertemu berulang kali dengan Khairil Anas dan Rosmah,” katanya. “Beliau bukan pegawai peribadi saya. Beliau mempunyai hubungan yang kuat dengan Najib.”
    Mantan Timbalan Perdana Menteri itu berkata beliau akan mendedahkan bukti dakwaannya dalam masa terdekat.
    Kesimpulan pada kenyataan Anwar telah membayangkan betapa beliau cemburu dengan pasangan gaynya Saiful Bukhari dan berkemungkinan berlakunya pertengkaran dan ugutan diantara mereka berdua hingga memaksa Saiful membongkar hubungan seks liwat mereka.
    Perkara yang sama juga pernah terjadi di pejabat TPM di mana berlakunya pertengkaran diantara Khairil Anas dan Wan Shihab oleh kerana terlalu cemburu kepada Najib yang sering memihak kepada Kharil Anas.… Dahulunya mereka berdua ini dikatakan begitu intim dan rapat sebelum mereka berpecah kepada dua jabatan yang lain.
    Di mana Khairil Anas kini menjaga Najib dan Wan Shihab pula menjaga Datin Rosmah.
    Khairil Anas, Wan Shihab dan Saiful Bukhari adalah tergolong diantara anak-anak ikan Najib. Mereka mempunyai hubungan seperti pasangan kekasih. Bezanya mereka ini lelaki dan sukar untuk kita ramalkan.
    Bukan Anwar sahaja yang begitu rakus dengan kaum lelaki, tetapi tidak kurang dengan Najib. Bezanya, Najib begitu pandai menyembunyikannya dan begitu berhati-hati menyembunyikan status sebenarnya.
    Amat memalukan apabila Najib sanggup mengambil anak-anak ikannya bekerja di pejabat TPM. Khairil Anas yang berkhidmat di Uia sekarang bertugas sebagai penulis ucapan Najib pada bahagian dasar dan penyelidikan.
    Anwar-Najib rupanya sama miskipun orang yang berlainan. Moral kedua mereka amat hancur. Selayaknya digelar pemimpin al-juburi. Mereka hanya tahu menggunakan keadaan untuk meneruskan hayat mereka samada dari segi kehidupan ataupun berpolitik. Sungguh hina dan tidak bermaruah.
    Perkumpulan kesemua anak ikan yang ditempatkan sepejabat sebenarnya memudahkan Najib menyelia segala tindakan mereka. Jika mereka cuba untuk curang, maka senanglah Najib mengambil tindakan tatatertib sepertimana ‘tindakan wajib’ yang dilakukan oleh Anwar terhadap Saiful hinggakan Saiful sudah tidak tahan lagi diperlakukan.
    Disebabkan itu jugalah Khairil Anas dan Wan Shahab tidak boleh ke mana-mana selain melekat bersama Najib. Dan Rosmah pula terpaksa mendiamkan diri kerana dia juga telah lama memasang angan-angan untuk menjadi “First Lady”.
    Apa sudah jadi dengan Malaysia ini. Kenapa? Sudah tiada lagikah anak-anak muda yang ikhlas bekerja untuk membantu Najib mentadbir negara? Kenapa Najib sanggup mengambil mereka yang kurang akhlak bekerja dipejabat TPM semata-mata untuk memuaskan nafsunya.
    Ramai lagi anak-anak muda yang mempunyai potensi besar yang boleh membantu Najib mentadbir negara ini. Sikap Najib memang begitu jijik sekali. Beliau tidak layak digelar pemimpin nombor dua negara apatah lagi hendak menerajui negara ini pada masa akan datang.
    Majoriti ulama iaitu Malik, Abu Yusuf dan Muhammad (dua orang murid Abu Hanifah), Syaf`ie dan Ahmad mengatakan hukuman liwat ialah bunuh dan ia termasuk jenayah hudud (Dr. Ahmad Fathi Bahnasi, Madkhal al-Fiqh al-Jina’I al-Islami, m.s: 60).
    Pertama, liwat sama hukumnya dengan berzina. Tetapi, dosa liwat lebih besar daripada dosa berzina. Malah Rasulullah s.a.w melaknat golongan yang meliwat isteri melalui dubur.Menurut Abu Hurairah r.a, Nabi s.a.w telah bersabda:”Sesiapa yang mendatangi wanita atau isteri melalui dubur (liwat) atau menemui tukang tilik lalu membenarkan apa yang dikatakannya, sesungguhnya dia telah kafir (tidak mengimani) risalah yang telah diturunkan kepada Muhammad s.a.w.” – Hadis riwayat al-Darimi.Kedua, sesiapa yang melakukan maksiat berterusan digelar sebagai ahli fasiq sama ada dosa besar atau dosa kecil. Hakikatnya, tidak sah ahli fasiq mewalikan anak perempuannya. Namun, jika dia telah bertaubat pasti ALLAH menerima taubatnya kecuali syirik. Jika syirik, dia wajib melafazkan kembali
    Kalimah syahadah kerana telah murtad.Firman ALLAH S.W.T:”Sesungguhnya ALLAH tidak mengampunkan sesiapa yang mensyirikkan_NYA tetapi mengampuni dosa selain daripada itu.” – Surah al-Nisa”: 116.Ketiga, hukuman bagi perbuatan liwat sama ada peliwat atau mangsa liwat secara rela ada sedikit perbezaan dengan hukuman zina. Penzina

    Comment by hassan | Thursday, July 3, 2008 | Reply

  14. You have very good points in this post.
    Keep on being analytical and critical to help make a better world!

    I’m personally not too familiar with Malaysian politics, but I find it really nice that Malaysian citizens/bloggers are findin their voice online.

    I hope people in authority will really listen instead of drown out people’s opinions and consider them threats.

    Comment by Maris | Tuesday, January 13, 2009 | Reply

  15. You mention the judiciary as the last bulwark of justice in a democracy, but democracy does not ensure justice, only a Jeffersonian republic that protects the property rights of the citizen (which includes his body) from assault by both others and the state. The Bill of Rights says what the government can’t do to the individual. So democracy is no panacea for injustice, only a republican, libertarian constitution with a Bill of the Rights of Man. Also, you can see in this judicial crime, carried out by the religio-racist government of Malaysia, why Thomas Jefferson called for a “wall of separation between church and state”. Any country that identifies itself with an organized religion is hopeless, and you should spend your creative energies in some other society, if you can afford to get out. And by the way, why aren’t those “liberty-loving-leftists of Euronirvana” out in the streets on this issue? — Silverwolf

    Comment by lobobreed | Thursday, January 29, 2009 | Reply

  16. Malaysia as a country has long gone to the dog when UMNO started its NEP in the 70s.

    Comment by Finsoft Systems | Sunday, March 15, 2009 | Reply


    Comment by Edi | Monday, May 18, 2009 | Reply

  18. there seesm to be a problem in a lot of SE Asian countries , concerning authoritarian governments who misuse the law , retain power by any means , do not respect freedom of speech or human rights , malaysia and SIngapore are classic examples.
    Also there is little separation of government and the legal system , which allows the legal system to be manipulated .
    The validity of a government has to be put in question when it deliberately misinterprets or misuses a countries constitution.

    Comment by PG | Friday, July 9, 2010 | Reply

  19. Thanks you. Eminem <3

    Comment by Aaliyah | Wednesday, August 25, 2010 | Reply

  20. Quote: I am convinced that based on Islamic syariah (law), the physical and weapons training in a mountainous area in Aceh was an act of worship by Muslims as ordered by God to deter Muslim enemies. by Indonesian cleric Abu Bakar Bashir.

    Why is there no reaction to this inhilistic mentality from any Malay Muslims in Malaysia? Do they condone it? Is it being propagated in Malaysia by like minded underground Taliban mentality groups? Abu Bakar must be stoned to death or hanged in public – that should be the cry for justice from civilised nations.

    Comment by redfaceindian | Sunday, February 27, 2011 | Reply

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