sekadar permandangan dalam kelas...Subject Islamic Law of Property
My lovely AIKOL
Lepas Mock Trial Sem 3 08/09
The role, composition and power of National Council on local government.
Ø Federal constitution also provides the power to the state government on matter pertaining to local government which stated under item no 4 of the List 2 under Ninth Schedule.
Ø But at the same time Federal Constitution also give power to the parliament to enact law on local government. It is provided under article 76 (4) which not only give the power for the government to enact law on land matters but also any matters on local government.
Ø Local government is the lowest level in the system of government in Malaysia after federal and state.
Ø Article 95A contains provision on National Council for Local Government which clause 1 says about the members of the council and it same like members of National Council on land.
Ø Clause 5 states about the role and function of the council which is to formulate from time to time in consultation with the federal government and the state governments a national policy for the promotion, development and control of local government throughout the federation and the administration of any law relating thereto.
Ø The Local Government has the power to collect taxes (in the form of assessment tax), to create laws and rules (in the form of by-laws) and to grant licenses and permits for any area of jurisdiction, in addition to providing basic amenities, collecting and managing waste and garbage as well as planning and developing the area under its jurisdiction.
Ø Examples of laws enacted by parliament relating to local government are Local Government Act 1976, Town and Rural Planning Act1976 and Drain, Road and Building Act1974.
1) The role, composition, power of National Council on land
Item no 2 of the List 2under the Ninth Schedule provides that the state government has power pertaining on land matters.
However there are certain exception which provides that the parliament has given a power to legislate law on land matters in all states except Sabah and Sarawak which stated under article 76 (4).
In addition, Article 91 of the Federal Constitution provides the explanation on National land Council which inter alia;
i. The members of National land Council which are: Minister as chairman, one representative from each of the states (who shall be appointed by the Ruler of the state) and no more than ten representatives of the federal government.
ii. The role: to formulate from time to time in consultation with the federal government, state government and the National Finance Council a national policy for the promotion and control of the utilization of land throughout the federation for mining, agriculture, forestry or for any other purpose , and for the administration any laws relating thereto.The federal government or the state government of any state may consult the National Land Council in respect of any other matter relating to the utilization of land or in respect of any propose legislation dealing with land or of any administration of any such law, and it shall be the duty of the council to advise the government on any such matters.
Article 11 of the Federal Constitution provides the freedom of religion and it contains the freedom to profess, practice and propagate his religion. But we should bear in mind that the right to propagate his religion is subject to clause 4 of the article which states that State law and in respect of federal territories, federal law may control or restrict the propagation of any religious doctrine or belief among person professing the religion of Islam. It means that no person can propagate muslim to convert to other religions but at the same time muslim can propagate non-muslim to convert to Islam and non- muslim can propagate others except muslim to convert to their religion.
The special position of Islam has been discussed in the controversial case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Anor [2004] 6 CLJ when Faiza Tamby Chik J said that: “article 11 grants every person the freedom to profess and practice his religion. However in respect of an act of conversion out of Islam, the same must be subject to the relevant syariah laws to be determined by Syariah courts. Freedom of religion under article 11 must be read together with article 3(1) which places Islam in a special position as the main and dominant religion of the Federation, with the Federation duty bound to protect, defend and promote Islam”.
In the case, the learned judge dismissed her application to marry a Christian man, to change her name from Azlina Binti Jailani to lina Joy and to remove the word ‘Islam’ on her identity card. Her appeal to Federal Court also has been dismissed.
In some other case like Minister of Home Affairs, Malaysia v Jamaluddin Bin Othman [1989]1 MLJ 368, the court seems not give decision on favor of Muslim when it was held that the police could not detain a Malay who was had allegedly converted to Christianity and preached it as it was against the provision of religious freedom under article 11. The judge in this case although appreciate the position of Islam in Federation but at the same time not prepared to impose any punishment to a Muslim who has converted.
On the issue of whether all citizen includes a minor have right to choose his religion, the answer can be seen in the case of Re Susie Teoh[1986] 2 MLJ 228. Abdul Malik J before the High Court said that: “ I can find no definition of ‘person’ either in the Federal Constitution nor in the Interpretation and General Clause Ordinance 1948 which govern it and I must conclude that this applies to every person irrespective of age … I decide for herself in the exercise of her constitutional to profess and practice her chosen religion.”
In Re Susie Teoh, the minor was 17 years old when she ran away from home and converted to Islam. Unfortunately the decision was overturned on appeal to the Supreme Court.
The right under freedom of religion is also subject to clause 5 of the article when it provides that the article does not authorize any act contrary to any general, law relating to public order, public health or morality. Means that a person can profess, practice and propagate his religion as long as his act does not contrary to law on public order, public health and morality.
In Hjh Halimatussaadiah Bt Hj Kamaruddin v Public Services Commission Malaysia & Anor [1994] 3 MLJ 61, the court held that public order under clause 5 put the limit on the right to religious freedom. The case is about a lady public servant who was dismissed from her office after refusing to comply with a service circular which prohibiting lady public servant from wearing ‘purdah’ during office hours. The court contended that the act of wearing purdah during office hours may cause unsafe situation to public since a criminal may take advantage on it to cause harm.
Contrary to it, in the case of Meor Atiqurrahman Bin Ishak & anor v Fatimah Bt Sihi & anor [2000] 5 MLJ 375, the court held to the favor of the plaintiff and allowed students wearing ‘turban’ at school. The ratio is the act of wearing ‘turban’ was not against public order since it did not cover face so no harm may be cause by wearing it. This decision was not only applicable to Muslim since Sikh believers also wearing such thing.
It indicates that people are given right on religious matters but at the same time restrictions are provided in order to maintain the harmonious situation among people from different religions and beliefs. At the end it is up to the court to use their power on protecting all the liberties under fundamental liberties provisions or just follow whatever passed by parliament. On the absent of a proper interpretation of the provision by court, the fundamental liberties will no more become the right of people but ill will be the burden for people.
Article 10 which provides provision on freedom of speech, assembly and association is one of articles contain in Part 2 Fundamental Liberties. Article 10(1) state about the right of every citizen on speech and expression, assembly peaceably and without arms and the right to form associations. This provision is subject to clauses (2), (3) and (4) of the article.
Although the article gives freedom to the citizen in speech but it also provides some other limitations as in clause (2) where the parliament may impose law on the right in order to give restriction as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restriction designed to protect the privileges of parliament or of any legislative assembly or to provide against contempt of court, defamation or incitement of any offence.
It shows that this article not merely contains the right of the citizen but more on the obligation of the citizen since there are many limitation provided. A person cannot simply speak out whatever he wants because his right to speech is subject to clause (2). This seems contrary to the draft of constitution contained in Reid Commission Report where it put the duty on courts to protect fundamental liberties provision by taking a critical view of the law restricting fundamental liberties and not just to put into effect any law passed by parliament. In Madhavan Nair v Public Prosecutor [1975] 2 MLJ 265, the accused has contravened a condition annexed to the grant a license to make a speech. The condition was: “…the substance of the speech should not touch on matters relating to the M.C.E (Malayan Certificate Examination, the school leaving certificate examination in which it was necessary to obtain a pass in Malay in order to obtain a certificate) result and the status of Bahasa Malaysia as the official language as laid down in Federal Constitution.” The issue in the High Court was whether the act of imposing a condition on the said license is contravened Article 10? Chang Min Tat J in his judgement said that the police could not impose any condition which contrary to the article and he added that no law power, statutory or otherwise can be exercised so as to contravene any article of the constitution. The judgement was influenced by Sedition Act 1948 and clause 4 0f article 10. In other case of Public Prosecutor v Ooi Kee Saik [1971] Raja Azlan Shah J said “in my view the right to speech ceases at the point where it come within the mischief of … the Sedition Act.”
While article 10(1)(b) gives the right to citizen to assemble peaceably and without arms. Like under clause (a), this right also subject to clause (2), (3) and (4). Does it means any kind of assembly and gathering which is done peacefully is lawful or may a peace assembly be considered unlawful just because there is other law restricts that assembly? In Chai Choon Hon v Ketua Police Daerah Kampar [1986]2 MLJ 203, the peaceful assembly was restricted by Police Act 1967. In that case the act restricted on the number of speakers and the court held that the restriction was void as it was unreasonable.
Looking at same ground, can a peaceful demonstration be done by citizen who disagrees to any government policy? For example what has been done during ‘BERSIH’ assembly on 2008 and ‘ANTI PPMSI’ on 2009. On what basis police has right to prevent the people from holding such assembly? If the police argued that the place was not suitable since it was held in a crowded place so is it will be lawful if it was held in countryside? And if police argued that it will bring harm to the public, on what extent it may cause since the people bring no weapon. So what law used by police to restrict such assembly? So the restriction should be considered as unconstitutional. In contrary, the assembly held by Hindraf on 2008 should be restricted as it against article 10(1)(b) because the Hindraf members when held the assembly has bad intention and also may cause harm to public as they bring dangerous weapons and used criminal force to public servants on duty.
Other right provided under article 10 is the right to association. This article also seems not bring much benefit to the citizen since court itself confused on the extent of the right given to people in association. In the case of Malaysian Bar & Anor v Government of Malaysia [1986] 2 MLJ 225, Harun J held that article 10(1) (c) does not give any right to any citizen to manage association but just the right to form it.
The issue comes to mind is who are given this right? Is this right given to all people regardless their status and age? Can law be biased by giving certain restriction on particular person only for example in University and University Colleges Act 1971 which contain provision restricting university students from involving in political parties? Or is political parties are excluded from the meaning of association? So it seems the provision under the Act is unreasonable. Not only that, although article 10 has given right to the citizen to association but in most universities and colleges, students need to wait for a long time just to form an association. It shows that the right is does not function properly.
Those three rights under article 10 are so important since it becomes the basic of the doctrine of democratic country. From the freedom of speech, assembly and association, the people of the country may express their opinion on important matters of the country especially what are related to their rights and obligation. The court should function and use their power to help people and not just interpret the law in favor of the parliament.
