Bujai's title for his posting yesterday on the latest Court of Appeal judgement was truly appropriate. [Read "Human Rights defeat Islamic Law" here. ]
A three-judges bench led by Datuk Mohd Hishamuddin Mohd Yunus overturned a judgement by High Court and proclaimed Section 66 of the Shariah Criminal Enactment of Negeri Sembilan violated Articles 5, 8, 9, and 10 of the Federal Constitution.
They over-step the jurisdiction to make judgement on syariah matter. Naturally, it got the various western biased human rights groups championing LGBT pleased. [Read MI here.]
This judgement is sending a wrong signal legally and may raise suspicion on the conduct of judges in the higher courts. Are judges misinterpreting the law and Constitution for political agenda?
Prof. Shad Faruqi did say, "Constitutions are political documents. They reflect the ideals of the time, the raw realities and the workable solutions arrived at by the people who framed them." [read it in the Bar Council here].
But, judges are not lawmakers. Enter politics, get elected and ensure they have the numbers should they wish to change the Constitution and law!
Off late, there have been concern by certain section of the legal community that there is a trend amongst several judges in the Court of Appeal to make judgements that are superceding case precedents. Law and procedures are reinterpreted with a certain political bias for human rights agenda.
For instance, Shah Alam High Court given Nik Nazmi his third acquital for leading a public demonstration because the Court of Appeal have made a judgement that Section 9 (5) of the Peaceful Assembly Act was unconstitutional. Presumably the argument for the acquital was based on Part 2 of the Federal Constitution on Fundamental Liberties.
In the latest judgement involving transgender or "pondan" as Malay would refer them, it is in contravention to Article 121 (1A), in which there had been many precedents set, that the High Court has no power to deal in syariah enactment matters. See below:
In the subsequent clauses 121 (2) and (3), it only mentions of Court of Appeal (CoA) as superior court to High Court (HC) and Federal Court (FC) superior to CoA. Does the latest judgement mean the CoA and FC have been conferred power over the Syariah Court?
It rises the question whether judges have basis to invalid any law passed by parliament? Article 128 (1) below say they do but under what circumstances?
Does the same power conferred to the FC also conferred to the CoA? Article 128 (2) and (3) mentioned that power of FC:
but jurisdiction of the CoA is limited to Article 121 (1)(B) below:
Since the High Court had heard the transgender appeal, does that mean the civil CoA could simply take up a case under the jurisdiction of the Syariah Court and over rule case precedents and ruling by FC on the jurisdiction divide between civil and syariah courts?
The courts should have seek for FC clearance before presiding. In the case of the SIS Forum, they have applied the same similar trick for a judical review.
When Dato Marina Mahathir said they are challenging the process and not the fatwa [read in MMO here], it may seemed that the fatwa on their deviant status remain. It is not necessarily so. They are trying to by-pass the jurisdiction of the Syariah Court by seeking for constional judicial review by FC (likely in line with Article 128 (2)) to deem the Fatwa making process unconstitutional?
It is similar to the Lina Joy case to bypass Syariah Court. There are arguments to say they could do so. [Read also this blog here] Thus, which precedent will the judges rely their judgement on? The Article 121 (1)(A) or CoA transgender precedent?
In the Transgender case, the judges led by Dato Hishamuddin took the Article 5, 8, 9 and 10 on Fundamental Liberties to override article 121 (1)(A) on the power of the Syariah Court.
In the Federal Constitution, all the freedom or rights given to any individual or groups does not have a blank cheque but come with it's own exceptions.
The "pondan" made their complain in accordance with Article 5(2) but article 5 (1) states the exception that:
personal freedom has to be in accordance with the law, in which article 5 (4) acknowledge the Syariah Court magistrate:
In all the Section 8, 9 and 10 mentioned by CoA, there are exceptions to those freedoms. There is NO ABSOLUTE FREEDOM or LIBERTY in Constitution, be it here in Malaysia or any other countries, because the freedom and liberty of the masses and selected groups are given due consideration too.
The freedom to equality promised in Article 8 comes with it's exceptions, below:
The freedom from banishment and movement in article 9 comes with it's own exception:
There is NO ABSOLUTE FREEDOM to assembly and association mentioned in article 10, below:
With all the exceptions provided for in the Constitution, what then is the basis for declaring the Syariah Enactment as unconstitutional? Under Article 11 (3), Islam has the right to manage it's own affair:
and more. The Islamic religious institution has the following constitutional right:
which could also enable them to restrict deviant religious doctrine and belief.
Engagement is not necessary especially when SIS have been engaged and advised on many occasions. They are lying through their teeth should they deny. It comes to a point MAINS has to carry out their responsibility as authority.
To lay man with limited knowledge of law, it raises suspicion of judicial bias on the judgement led by Dato Hishamuddin. Surely the complainant could be exempted from punishment due to their psychological disorder but it is inconceivable for the Enactment to be cast as unconstitutional.
The judges is seen to interpret the law independently from the Constitution and in doing, could be deemed as having their own agenda, human right or most likely political.
Judges have misbehaved in the past and subjected to a Tribunal.
The judgement error could be intentional. There must be a study done to see the trend in the judgements of the likes of Dato Hishamuddin, former PAS candidate, Dato Mohd Arif Yusof, Dato Mah Weng Kwai and Dato Dr Hamid Sutan bin Abu Backer.
In the first place, the opposition instigated the TBH family and the Chinese community to demand for a RCI and Coroner inquiry. Unsatisfied that the outcome did not met their agenda, they applied to the CoA.
The CoA judgement to cast aside Coroner's report is strange. They had no access and were in no capacity to deal with the technical issues. And Police was told to investigate. Wasn't that what the police wanted in the first place but DAP resisted and as a ploy, used the family to cover-up their wrongdoings?
What evidence is there left for police to investigate on now?
He had on many occassions refused to recuse himself from cases involving PAS and Pakatan Rakyat member.
Surely it is not by coincident that almost all the cases co-incidently favours the opposition personalities. [Read ABITW here, MyKMU here and Agendadaily here]
Tian Chua, Zuraidah, Rafizi and PKR supporters have openly threaten the court to acquit Anwar. He himself committed contempt of court for insulting an officer of the court. Will the court dare do anything to this charade?
The fear amongst lawyers that the bench may willingly bent their back to pressure from the opposition, so-called human rights activists, Bar Council, foreign NGOs and press, and dramatise public demonstration on the Dato Seri Anwar second sodomy trial.
Talk by certain lawyers is that the judges are not familiar with forensic.
Though one source from Johor familiar with the judges said otherwise, the lawyers claimed there are judges that have a tendency to lean in favour of their former peer.
The trend towards western human rights value, including rights to LGBT, could psychologically influence the court away from the case in hand of criminal carnal intercourse and consideration for the victim.[Read Dato Ariffin Zakaria here]
Those following closely the FC submission could clearly see the defense has no intention of disapproving Anwar had sodomise Saiful. Gopal repeated what late Karpal Singh and Christopher Leong said that it was a "suka sama suka".
They were raising minor and frivolous technical issues with the hope that one will stick as reasonable doubt to acquit Anwar. If unsuccessful, the judges opinion and judgement are fodders for opposition to campaign and blame the government for various uncalled for misdeeds. They will claim they had 42 doubtful issues but FC rejected
Pity that Tan Sri Shafee may have fell to their strategy to become defensive than being naturally offensive as prosecution. He may have not much choice.
* Updated and edited: 11/9 10 AM