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Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

Policies and the Constitution

Posted: 01 Oct 2013 12:30 PM PDT


It makes no sense whatsoever if they can flout the Constitution with the excuse that they are making policy, not law. If that is the case, why have the Constitution at all since it won't be able to protect us against policies, only laws? 

Azmi Sharom, The Star 

A case can be made for policies, and not just laws, to be subject to constitutional requirements. An examination of the new Bumiputra Economic Empowerment Agenda gives an example of the grounds by which policies can be viewed as contravening the Constitution.

LET'S talk about the new Bumiputra Economic Empowerment Agenda (BEEA). From my understanding of the BEEA, it is a policy where the Government will actively direct business opportunities to bumiputra interests as well as a host of other endeavours, all with the purpose of boosting bumiputra economic presence.

I do not want to discuss the economic pros and cons of this new policy; I will leave that to the economists. Instead, I wish to examine this from the viewpoint of the Constitution. Specifically, I want to discuss if this policy can be deemed to be constitutional.

Before we begin, I wish to state here that I am in no way an economic liberal. I believe very strongly in affirmative action.

However, I believe that such affirmative action has to be properly justified, namely that it is designed to help those who are in need the most, specifically the poorer sections of a community.

Furthermore, any such action must be reviewable in an open and democratic manner in order to ensure that it is reaching its objective and that it is not abused nor implemented in such a way as to cause too great an imbalance to the principle of equality.

These basic guidelines are necessary because affirmative action is a type of policy which undoubtedly goes against the basic ideals of equality.

If we take equality as an ideal, then any deviation from it has to be done most carefully and for jolly good reasons.

Incidentally, I did not pluck these principles from out of my ear; they are found in a decision of the International Court of Justice in what is known as the Belgian Linguistic case.

Now, I am absolutely convinced that the founding fathers of this country understood and appreciated the ideal of equality.

They also understood the reality of Malaya in 1957, which is to say there was a massive economic divide in the country and that the majority of the populace, the Malays, were miles behind in terms of economic development.

It was unfortunate, but necessary therefore to take measures to correct that imbalance, although it was not something that was to be done in a blasé or light-hearted way.

In fact, the Sultans at the time stated in their comments to the Reid Commission that ultimately they envisaged a time when race did not enter the equation for governance.

This being the case, there was a delicate balancing act to be done and this balancing act can be found in the way the Constitution was drafted.

Firstly, the principle of Equality is enshrined in Article 8.

However, Article 8 also notes that there can be unequal treatment in the country, but, and this is a big but, such unequal treatment has to be specifically allowed for by the Consti-tution.

Don't take my word for it; here is that provision in full: "Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employments under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishment or carrying of any trade, business, profession, vocation or employment."

And there is plenty of unequal treatment "expressly allowed by this Constitution".

They include things like the treatment of the orang asli, the holding of positions in religious institutions, personal law, membership of the Malay Regiment, and so on and so forth.

However, we are not interested in that here.

We want to see what it says about treating people unequally in economic terms.

For that we have to look at Article 153, which says there could be reserved for Malays and natives of Sabah and Sarawak a reasonable portion of permits and licences for the operation of trade or business as required by federal law.

Permits and licences: is that what the BEEA is all about?

If it is not, then surely such unequal treatment does not fall under the exception provided for in the Constitution, which says that breaching Article 8 can only happen if it is "expressly allowed by this Constitution".

The next question that arises is the nature of the BEEA. It is a policy and not a law.

An argument has been made therefore that policies are not subject to the Constitution.

Well, if that is the case then if we have an irresponsible government, we may very well find ourselves with all sorts of strange policies which cannot be challenged on constitutional grounds.

A government policy is something which the Executive has the power to create and enforce.

It is something which can affect the lives of the citizens. One of the purposes of having a Constitution is to check the power of the Executive so that it will not abuse that power.

It makes no sense whatsoever if they can flout the Constitution with the excuse that they are making policy, not law.

If that is the case, why have the Constitution at all since it won't be able to protect us against policies, only laws?

For example, in August, an American court held that the policy of New York police to racially profile people when conducting stop-and-frisk exercises was unconstitutional.

This shows that challenging executive power on constitutional grounds is not limited only to laws but also policy. As it should be.


Posted: 01 Oct 2013 12:14 PM PDT


Instead of focusing on how to make Muslims more resourceful and have a better economic life, they spend their days talking about how the enemies of Islam are causing the failures of Muslims. They will not admit that they are the real stumbling block to the growth of the Muslim community.

Zaid Ibrahim, TMI

The Prime Minister once reminded the world community in New York that moderation is the key to solving our many problems. He made particular reference to the Muslim community, within which sectarian killings and violence are taking a heavy toll on human lives.

Like other Muslim leaders, he took great pains to explain that Islam is a religion of peace and is moderate in its teachings. The question, then, is why the most violent and barbaric conduct is often being carried out by groups who call themselves Muslim, be it al-Shabaab , the Taliban or Al-Qaeda.

To answer this question, we have to examine the success story of Indonesia and the failing story of Pakistan.

Muslims form the biggest majority in Indonesia, yet after 60 years of independence their economic standing still lags behind that of non-Muslims in the country. Some sources say that as much as 70 per cent of the country's wealth is owned by non-Muslims. The Indonesian Government realised that in order for the economic situation of the country's Muslims to improve, Indonesia had to be a modern and viable democracy.

The Indonesian Government focused on building massive infrastructure projects as well as harnessing their human resources. Parliament did not waste time debating if Indonesia was an Islamic state or not, but on whether the lives of Muslims had improved. Economic matters took priority—although they did have to deal with occasional side issues like beauty contests and the publication of a local version of Playboy magazine.

The contrast with Pakistan is marked. The people spend all their money and resources on building nuclear bombs. They would rather go to war with India and other "Western stooges", burn buildings and kill Shiites. They much prefer blowing up schools and teachers than improving the lives of the people. The culture of hate and violence is rife among their community leaders and nothing is being done to stop this reign of terror. Pakistan is probably the most ungovernable Muslim country to date.

In Malaysia too, Muslims are economically weak despite being in power with absolute majority for over 50 years. We blame our history, our multiracial makeup and other silly reasons for our backwardness.

Read more at: http://www.themalaysianinsider.com/opinion/zaid-ibrahim/article/moderation 

Hijabi pole dancers and then some

Posted: 01 Oct 2013 11:55 AM PDT


"Religion to me is very personal. What and how I practise are the result of my upbringing and my own readings/research. A wise imam once said, 'Listen to the religion, not the people.' 

Dina Zaman 

Meet Vixen.

And Moxie.

The two young hijabs in front of me are married, well-educated, love Sephora and cats. They are the best of friends, and adhere to Islamic teachings faithfully. They both are professionals, and have gone far in their careers.

They are also pole dancers.

"This," Moxie says, tapping her own hijab, "is a sign of respect. R-E-S-P-E-C-T. We nurture our bodies and minds. Our bodies are not for show."

But you pole dance, I say.

"Well, the classes are women-only. So we're not showing our bodies to men and the public."

"And our husbands like it," Vixen smiles. They have poles installed in their homes.

They both look at me. "Do you want to come for a trial class?"

I fend them off. No thank you, I hear pole dancing is brutal, I say.

How do the two reconcile their faith, aurat with their hobby of pole-dancing?

Why not? Again they reiterate, this has nothing to do with syirik. It's exercise, and conducted in a closed class full of women. They don't perform in public.

I have been speaking with and following a couple of young women of the new generation of hijabs, who are worlds apart from their mothers, and me. 

In the 80s, when more Malay women took to covering their aurat, many wore black, and some took to the niqab, which spawned off the Hantu Kum-kum myth. 

Beginning from the Nineties, modest fashion began to be more colourful, as women took to wearing floral baju kurungs with pastel coloured scarves (tudungs). 

However, in the last eight years, the young have made modest fashion their own. Yuna, the singer, who is now making inroads in the highly competitive music industry in the US, paved the way for many young Muslim women. The Internet also influenced young Muslim women, as they poured over blogs, fashion websites, and adapted the latest trends in modest wear.

There had always been this perception: Malay women in hijab are less educated, less exposed to the world and are conservative. They are also perceived to be at the lower rung of the wage scale. 

Maybe this could have been true 20 years ago, but today, the hijabi professional and hipster hijabi come from upper-middle class backgrounds, are well educated,  and tote the latest designer IT bag.

The pole-dancing hijabs sitting in front of me are proof that veils and modesty to not equate to low IQ.

Read more at: http://www.themalaymailonline.com/opinion/dina-zaman/article/hijabi-pole-dancers-and-then-some 

Kredit: www.malaysia-today.net

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