Federal Constitution is supreme

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A November 2014 court ruling in a case involving transgenders - Photograph: themalaysianinsider.com

A Court of Appeal decision in favour of three transgender males has highlighted the supremacy of the Federal Constitution, writes Henry Loh.

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The transgender community has received a boost – Afif Raiezal/The Malaysian Insider

Anwar Ibrahim’s appeal at the Federal Court to reverse his conviction of sodomy by the Court of Appeal went on for eight days.

This was in stark contrast to the hasty two days of hearing at the Court of Appeal, which had overturned the earlier decision of the High Court to acquit Anwar of the sodomy charge.

Some quarters have pointed out that the hastiness in which the Court of Appeal had sat and convicted Anwar came ahead of PKR’s planned “Kajang Move”. The timing, of course, could have been mere coincidence.

Well, what’s past is past; we now await with bated breath the Federal Court’s decision on Anwar’s final appeal. Dare we hope that justice will triumph? Anwar’s defence team is claiming that the entire sodomy episode is part of a conspiracy to thwart the federal opposition leader’s political progress. The prosecution ask, in turn, “what political conspiracy?”

No matter the outcome of the appeal, life has to go on for the opposition leader. In Parliament recently, he raised some very important questions about the financial operations of 1MDB. Rafizi Ramli (PKR) and Tony Pua (DAP) too have been asking for clear answers on the actual liabilities of 1MDB and whether there has been full disclosure of the operations of this state sovereign fund. The debt of 1MDB has soared to RM42bn, and should the firm fail for any reason there is grave concern that the letters of support issued would be tantamount to a sovereign guarantee implying serious financial obligations for the government.

Najib as the Prime Minister, Finance Minister and Chairperson of the Board of Advisors of 1MDB, owes a fiduciary obligation to the people of Malaysia to make full disclosure of the actual financial health of 1MDB. Perhaps the Auditor General should also reconsider the calls made for its operations to be thoroughly re-audited.

Malaysia has been on the path of neo-liberalism for many years. This ideology, if left to run its course unchecked and without appropriate state intervention, can only mean greater hardship for the ordinary average income earning families in Malaysia, so argues the Member of Parliament of Sungei Siput. Achieving high gross domestic product (GDP) growth means little to the ordinary rakyat especially the poor people if it doesn’t translate to an improvement in their quality of life.

Dr Jeyakumar points out that more than 50 per cent of the total families in Malaysia have a combined family income of RM4200 or less. This makes it very difficult for them to make ends meet. About 29 per cent of the families actually earn less than RM3000 per month and they have to struggle even harder; we are referring to 8.7 million lives.

Some solutions, on health and housing, are suggested but does the government of the day have the political will and the heart to do what is right for the people of Malaysia?

The Muslim transgender community received a boost and scored a significant victory last week when the Court of Appeal ruled that they have the right to dress and behave as women. In a landmark decision, a three-member bench led by Datuk Mohd Hishamuddin Mohd Yunus, said section 66 of the Sharia Criminal Enactment violated Articles 5, 8, 9, and 10 of the Federal Constitution. The Negri Sembilan Islamic Religious Department (Jain) has already indicated that it intends to appeal to the Federal Court.

But with the landmark decision now in place, ripples have spread. The decision essentially highlights the supremacy of the Federal Constitution. Constitutional lawyers are now curious as to how the courts are going to decide on several pending controversial cases such as the right to use the word Allah and the Borders case, where the Federal Court is set to decide on the challenge against a Selangor state legislation that bans religious publications deemed to be un-Islamic.

It would be useful to read the cogent arguments put forth by Shad Saleem Faruqi on how the Federal Constitution is supreme.

Recently the authorities resorted to banning Indonesian Muslim scholar Dr Ulil Abshar Abdalla from entering Malaysia – purportedly because they were concerned over the impact of his progressive views on Islam. But modern technology had the last say: Ulil was able to participate via Skype in the Third International Conference on Human Rights and Peace and Conflict in Southeast Asia. This demonstrates that ideas can still flow across physical borders no matter the obstacles.

Finally, in full support of the articles of the Federal Constitution that provide for the freedom of expression, freedom of assembly and freedom of association AND the pursuit of academic freedom, we urge all right thinking Malaysians to rally behind the University Malaya students who are being probed for organising the talk by Anwar Ibrahim in University Malaya on 27 October.

Henry Loh

Co-editor, Aliran E-newsletter

18 November 2014

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