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Sumber Asal Berita :-

Posted: 02 Oct 2011 11:08 PM PDT

M. Bakri Musa

Chapter 10: Freedom, Justice, and the Law

Society and Individuals

Society and individual may be the two sides of the same coin; nonetheless our attitude or more importantly the attitude of those in power as to which side to be viewed first, involves more than just a simple toss of the coin. The difference between a totalitarian state versus a civil one is that with the former, the individual serves the state; in a civilized society, the state is there for the citizens. This seminal distinction makes all the difference.

The purported supremacy of Asian values that place a premium on societal goals over the dignity of the individual is in reality at best nothing more than a benign manifestation of authoritarian tendencies. It is no surprise that such societies are prone to militaristic and dictatorial tendencies, as demonstrated by Communist China and the Japan of World War II.

Indeed one can guess accurately the state of a nation by seeing how it treats its individual members, especially its intelligentsia and talented members. I see daily reminders of this in America. Visit any prestigious university in the West and you will find brilliant scientists and scholars from the Third World. The more backward the country, the more its citizens are represented. India and China are both backward, but America has an extraordinary number of their talented scholars and scientists.

Many of the "hi-tech" startups in Silicon Valley are the brainchild of Chinese and Indians entrepreneurs. The Egyptian Nobel Prize winner in Chemistry (1999), Caltech's Dr. Ahmad Zewail, did his formative research in America. The Egyptians recognized him only after he made a name for himself. The Pakistani-born 1979 Nobel laureate in physics, Abdus Salaam, too did his pioneering work in the West.

Visit any leading American medical center and you will see many luminaries from such countries as Pakistan, Ecuador, and Ethiopia. While every year America routinely grabs the lion share of Nobel prizes, what is not commonly recognized is that many of these geniuses are foreign born. These talented individuals had to leave their native land to maximize their potential.

When I see how Indonesia treats its gifted writers like Pramoedya Ananta Toer, I am saddened not so much for him but for the Indonesians. Here is a talented writer, God's gift to the Indonesians, and their leaders treat him like a criminal. They fail to respect much less appreciate his precious talent. While eminent American universities like Cornell and Cal Berkeley laud him, back in Indonesia his books are banned. It is instructive that he was nominated by his Malaysian admirers for the prestigious Maysaysay award which he won in1965. Meanwhile back in Indonesia the military rulers were debating whether he should be allowed to leave for Manila to receive the award.

Reading his autobiography, Nyanyi Sunyi Se Orang Bisu (The Mute's Soliloquy), I am struck at how callous and cruel the authorities are towards their citizens. Pramoedya's fate is in stark contrast to how writers are treated in America. For one, their intellectual property is well protected and they get generous royalty payments. Two, they are honored and rewarded with offers from universities to be their writer-in-residence or such similar program. In Indonesia however, Pramoedya was tortured, his private property and invaluable manuscripts confiscated, and he was banished to a remote island.

What Indonesia is saying to its citizens especially its talented ones is this: We do not respect your skills and ability; and if you become too smart, we will show you who is smarter!

The genius of modern Western civilization is its fine balancing between respecting individual freedom and rights on one hand, and the needs of society on the other. A salient feature of Western democracy is the freedom it affords individuals to pursue and fully develop their talent and abilities. Only modern democratic societies have successfully resolved the continuing dilemma of reconciling the needs of the individual with the claims of society. Totalitarian societies that prize the supremacy of society (or more correctly, the needs of those in power) have repeatedly proven to be disastrous failures. The abject failure of present day Islamic societies is precisely because their rulers have subjugated individual freedoms to the needs of society and its leaders. They have confused obedience to the state and its leaders as being the same thing as obeying God. The one common feature of many Third World countries today is their callous disregard for the dignity of their citizens.

The Golden Age of Islam was attributable to the remarkable freedom afforded to individuals. Such freedom resulted in the intellectual fervent that produced such giants as Imam Ghazali, Ibn Rashid, and Ibn Sinne. Historians now recognize the pivotal contributions of these early Muslim thinkers to the later European Renaissance.

To the extent that modern Islamic reformists would like to bring Islam back to those pristine values of the past, especially the respect and dignity for the individual, I am all for it. But present day Islamic "reformists," especially those in the Third World as represented by PAS in Malaysia and the Taliban in Afghanistan, would have their citizens be subjugated by the state. They have the supreme arrogance to believe that their state is divinely sanctioned, and thus holds supremacy over the individual. These leaders ought to be reminded that Islam thrives only in an atmosphere of freedom.

An All-Knowing God (Al-Aleem) has also bestowed upon each person an intellect, akal, and with it the capacity to think and reason. This divine gift is unique only to humans; it enables us to decide between good and bad, right and wrong, and whether to believe or not to believe. With this attribute man is also capable of creative knowledge. In short, man is not a robot. This human potential would be stunted if we do not have freedom in the broadest sense of the word. Or as Mahmoud Taha put it, "free from all the dehumanizing influences of poverty, ignorance, and fear." Today only in Western democracies have these fears been alleviated, and thus only in a democratic system does individuals have the potential to reach their full promise.

Left alone people will do what is best for themselves and their families. The role of the state is to encourage, not thwart, this natural instinct. When individuals progress, so would society.

Next: Personal Liberty in Malaysia

Hudud and the Constitution

Posted: 02 Oct 2011 07:17 PM PDT

It has to be said that Article 4(1) is a problematic provision. While the aim is clear — that is to guarantee order in the constitutional structure — it has been badly drafted. That is why some judges, such as the one in Chia Kin Tze (1958), got it wrong. We were lucky to have Surinder Singh Kanda (1962) where Lord Denning taught us the meaning of constitutional supremacy.

Abu Umar, The Malaysian Insider

There are basically three groups when it comes to hudud law implementation in Malaysia. While PAS has been consistent on the matter, DAP, the Islamic party's partner in Pakatan Rakyat, has been consistent in opposing it together with MCA and Gerakan from the ruling Barisan Nasional.

Meanwhile Umno, the leading partner in BN, has been sitting on the fences.

It is therefore interesting to find Prime Minister Najib Razak — echoing Professor Aziz Bari — saying that elements of hudud law are there already in the legal system. This is quite true given the existence of "moral laws" in the form of syariah criminal laws even though their provisions are not a hundred per cent Islamic.

Whatever it is, that position alone is good enough to put question mark on the assertion of hudud opponents that such a law cannot be put into practice in Malaysia as the Constitution and the legal system it created are both secular.

Indeed there are many provisions in the Constitution that allow the application of Islamic law, eg in the provision of Article 11 on the right to religious freedom when the parties involved are Muslims.

One can also mention the provisions in the state constitution on the qualification of the heirs to the throne, most of which have been taken from the writings of classical Muslim jurists. And whatever one has to say about the impact of Article 3(1), the plain meaning of the provision is that Islam has somewhat become the faith of the nation.

The bottom line of those provisions is that Islam has quite permeated the system. Whether or not Islam has become the benchmark is not quite important. But it looks like that it has either equal or superior status compared to the English common law.

For one thing, the Civil Law Act 1965 clearly provides that English common law can only be applied when there is a lacuna; when there is no law available. In simple terms, English common law is just nasi tambah, not the main course.

The hudud opponents also cite Article 4(1) and the Supreme Court decision in Che Omar bin Che Soh (1988) to say that religious law — or, more specifically, Islamic law — has no place in Malaysia.

What is important from this landmark case is that all laws, executive decisions and so on must be done within the constitutional constraints. It pretty clear that the constraint that our constitution has in mind is not vague standards such as democratic character or religious contents. What the Constitution requires is simply that the law or the decision must be made by the right authority and that it does not go against any of its provisions.

Now, is there any provision in the Constitution that prohibits the application of Islamic law? This is the one question that has to be dealt before one asserts the need to amend the Constitution to facilitate hudud.

As for the controversial case, the court did not actually say that we are a secular state. The case merely rejected the argument that Islamic law should become the benchmark to determine the legality of laws in this country.

And this is perfectly sound for the law is considered valid so long as it has gone through the right procedure. We can take the law from any source: Islam, Christianity, Hinduism and so on. What is crucial is these materials must pass the test laid down by the Constitution.

Another argument that has been put up to oppose hudud law — as envisaged by Kelantan Mentri Besar Nik Aziz Nik Mat — is that it would create more divisions and inequality in our society. Perhaps one should remember the right to equality under the Constitution is not absolute. This is evident from Article 8 itself and has been further reinforced by various court decisions over the years.

READ MORE HERE

Press freedom, a la MCA

Posted: 02 Oct 2011 06:17 PM PDT

If Chua and the MCA are truly and sincerely in favour and supportive of the real and pragmatic practice of press freedom, advocating the unrestrictive, unregulated, and unreserved media culture in the country, then the very first thing the MCA must do is to divest itself totally of its control of The Star and other related publications, by selling its shares in these media companies to the general public.

Thomas Lee Seng Hock

MCA president Chua Soi Lek has declared that his party wants the current restrictive and oppressive Printing Presses and Publications Act scrapped, to keep up with the increasing public demands for more openness and freedom of expression.

Chua said at the recently concluded 58th MCA annual general assembly that the aspirations of the new generation of Malaysians for a more liberal and democratic society means that the Barisan Nasional government should be bold and confident enough to dump the intolerable piece of harsh and authoritarian legislation, not just make amendments to it.

"We must work towards abolishing the Printing Presses and Publications Act and set a time frame for that. The government has to be bold and confident enough to take such a step," he said.

Chua pointed out that there is no level playing field now in the communication and information arena between the traditional main stream media (MSM) and the fast expanding and influential cyber media.

"The print media is subject to various laws, but the new media seem to have a free hand. There should be no such discrimination," he said.

Prime Minister Datuk Seri Najib Razak had announced in his Malaysia Day message to the nation on 16 September 2011 that the Barisan Nasional administration would amend the Printing Presses and Publications Act to exempt newspaper publishers from the current mandatory obligation to apply for a new printing permit annually.

The MCA proposal to go beyond just making adjustment to the intensely unacceptable and undesirable legislation is certainly commendable and deserving of praise and support.

But, an honest and objective look at the current attitude, policy and practice of the party in the area of press freedom surely exposes the hollowness of the Chua proposal, and the insincerity, and even hypocrisy, of the party leadership.

Chua Soi Lek should shut up about the issue of press freedom if he is not able to make the MCA give up the control of The Star and other newspapers it currently owns.

The political control of the nation's newspapers is surely the most glaring and conspicuous of a bad press culture, of which the MCA is among the top two culprits, the other being Umno which controls the Utusan Malaysia and other Bahasa Melayu newspapers.

Chua Soi Lek wants to project himself as one who believes in and advocates the practice of a free press culture, yet he is not prepared to lift the political control and abuse of the newspapers owned by the party.

If The Star can publish in full Chua's presidential address at the MCA assembly, it should also publish in full the policy message of DAP secretary-general Lim Guan Eng, if it is truly a free and independent paper, with the catchphrase tagline "The People's Paper".

The political slant in its news reporting and political commentaries is very obvious. Anything spoken by the MCA bosses must be published in full, while anything from the DAP or other opposition groups, especially those critical of the MCA, will not see the light of day.

Editors at the MCA-control newspapers practise self-censorship to ensure nothing detrimental to the party and its leaders is published. Such a bad press culture in these newspapers is largely responsible for the eroding of the independence and freedom of the media in our nation.

I challenge Chua Soi Lek to walk the talk on the matter of press freedom by freeing The Star and the MCA-owned Chinese newspapers from the party control. The test of his credibility and sincerity is not just in the talk advocating a free press culture, but in a determined, decisive, and deconstructive effort to deactivate the political control and abuse of The Star and other MCA-owned newspapers.

Until Chua Soi Lek liberates The Star and other MCA-control newspapers, he has no moral right to talk about the freedom of the press and freedom of expression.

Rantings over the great hudud debate

Posted: 02 Oct 2011 03:57 PM PDT

This writer has vehemently argued that for as long as there are leaders in the opposition parties who are bent on saying that this Federal Constitution is secular or Islamic and that the Islamic Penal Code is unconstitutional, Pakatan Rakyat would forever be subjected to this unending acrimonious debate.

Dr Dzulkefly Ahmad, The Malaysian Insider

Much as I hate this acrimonious debate on hudud, especially with the general election looming ever so close, I no longer believe that delaying it is going to do any good to anyone either. Not to Non-Muslims, Muslims and much less to Islam.

Conventional wisdom would have it that deferring the debate and focusing on more major issues of a dysfunctional democracy such as gross mismanagement of the nation's wealth and finances, endemic corruption, unbridled crony capitalism, gross income inequality would be in order.

Accordingly, this writer was earliest in reprimanding everyone, especially the PAS and other Pakatan leaders. His frantic attempt, as usual, fell on deaf ears. In no time, Pakatan leaders, nay the entire nation, are embroiled in the debate.

Once again, the "ugly" head of hudud, or such as it were described by many a less-than-friendly commentator, is "splitting" the nation, as if the nation were a one united country prior to the appearance of hudud on the national debate.

This writer would want to believe that, as a nation, we are only united in one cause, i.e. to make this beloved nation of ours, a better place for everyone.

So why should PAS and Pakatan take this issue upfront now?

For obvious reasons.

Allow it to be ventilated; the rantings, the ramblings and all the concerns and anxiety, perhaps misunderstandings. Let it out. Say what you really think of it. Perhaps in the free enterprise of ideas, it can no longer be suppressed anyway.

In the course of this national debate, the conversation has at least brought one unknown fact to the fore i.e. that the Islamic Penal Code is only enforceable on Muslims.

As to how it would be given an iron-clad assurance, as demanded by the Catholic Bishop Dr Paul Tan, who seems friendly with Tok Guru, it has yet to be meticulously articulated.

There are some who proposed that PAS conduct a referendum to assess and determine the level of support of the Kelantanese on the implementation of the enactment, now that Tok Guru's chief ministership has spanned well over 20 years.

The hudud debate has also been instrumental in assessing that there are many non-Muslims who no longer have any fear of hudud, while many more continue to feel terrorised by the mere mention of the word. It has sadly become a rather bad word.

Debate, discourse and the many good writings of scholars and columnists provide useful insights to this once-very-misunderstood-transcendental Law of God, grossly misrepresented and demonised as barbaric and uncivilised.

For once, this writer noted the earnestness of many who wish to understand the wisdom of Islamic jurisprudence beyond its purely punitive dimension. That is both reassuring and informative.

For all these "happenings", I retrospectively thought that this is not that bad after all. Yes, if all sensitive issues of religion and race get to be swept under the carpet, this nation would never be "enlightened".

Indeed, that would be the greatest assault on Reason! Only Perkasa and right-winged religious and racial bigots thrive in the ambience of fear, ignorance and under-siege kind of mentality.

More strategically though, imagine if this polemical topic is to come any closer to the finishing line or during the raging campaign period of the 13th general election.

God forbid, Pakatan would arguably be dead meat. The "master strategist" Tun M has his way of putting a wedge between the Pakatan coalition partners. Already we have witnessed Pakatan leaders all too willing to cross swords openly and the BN-controlled media ever so ready to fan it up.

We, obliviously perhaps, went headlong into the pit in a self-destruct mode. For days, the issue occupied front page of The Star, NST, Utusan, et al; Hudud Feud, Hadi speaks up etc. We have seen enough of these shooting at each other episodes.

Fast forward, we thank God that Pakatan survived the nerve-racking hudud debate in a three-hour closed-door meeting. This writer, who was also a secretariat member of the Barisan Alternatif (BA), a forerunner of the PR, witnessed its demise after PAS launched the Islamic Document.

This grim reminder was very much in our minds in those critical moments during the hudud debate.

Admittedly, this writer would have no qualms revealing the fact that "Islamic state" and "hudud" are the Achilles' Heel of the opposition front; before, in the BA, now, in PR and indeed to eternity.

Pakatan's strategic trajectory to Putrajaya

Pakatan has again reasserted its Common Policy Framework (CPF) and of its policy advocacy as spelt out in Buku Jingga or the "Orange Book." Pakatan has again categorically announced its undivided commitment to the Federal Constitution, namely as highlighted by the provisions of Articles 3, 152 and 153 and its resolute vision of bringing about a New Malaysia.

In the context of the hudud debate, PAS and many Muslim constituencies would have hoped for a better treatment and recognition of the work of implementing the Islamic Penal Code — namely the Enakmen Jenayah Syariah 2 (1993), which actually predated the existence of Pakatan Rakyat or in fact the BA. In brief, they wanted it endorsed by the Pakatan presidential council.

That was not to be the case, as collectively decided by the Pakatan presidential council. Implementation of the Islamic Penal Code is not part of the CPF. The hudud debate has revolved around its constitutionality as posited by some legally trained leaders, while others were arguing from the perspectives of politics and strategy, which also invariably concluded that the agenda be best addressed after the 13th general election.

The meeting finally acknowledged and respected the difference amongst parties in Pakatan Rakyat as a democratic alliance particularly with respect to PAS's position on the implementation of syariah law.

Difficult though it may seem for PAS but the DAP would similarly be in a rancorous position should Pakatan allow PAS to take the hudud law on board.

PAS would have to suffer the mockery of the Umno media for failing to convince her Pakatan partners to support its implementation in Kelantan. It would reinforce the notion of PAS being dictated to or saddled by the DAP.

READ MORE HERE

Kredit: www.malaysia-today.net

Isnin, 3 Oktober 2011

Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

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