Chinese in Malaysia also reject the rule of law for China, PAS wants a Constitution based on Quran!
Commentary and Analysis . . . There are parallels, ironically, between the Chinese diaspora including in Malaysia and PAS. Their respective positions have been well-articulated in the media.
The Chinese diaspora, if not the people in China as well, and PAS have firm positions on rule of law. The Chinese in Malaysia reject the rule of law for China, while PAS wants Constitution based on the Quran.
The Chinese in Malaysia, based on discreet silence which violates the rule of law, accept Beijing’s preposterous claim that China owns the South China Sea almost in its entirety, based purely on the geographical name. In fact, the South China Sea remains misnomer. The sea, south of south China, lies long way off from China Proper along the east Asian waters. It should be renamed as Southeast Asia Sea or Sea of Borneo.
It’s open secret that the Chinese in Malaysia and the diaspora believe that the rule of law, human rights and international aren’t for China. They remain convinced that these concepts will weaken China and erode its great power status and prevent its quest for global domination and hegemony. Beijing belabours in the delusion that the rule of law will disorient and confuse the people and sow the seeds for great chaos if it emulates India, for example, and the West.
Unity Government Rejected
PAS, in rejecting Prime Minister Datuk Seri Anwar Ibrahim’s unity government based on Malaysia Madani as “impure”, wants the Quran as Malaysia’s Constitution and multiculturalism in particular out of government, out of sight, and out of mind.
PAS, based on its positions reported by the media, don’t accept multi-culturalism, pluralism, liberalism, human rights and international law. The ummah worldwide don’t necessarily accept everything preached by PAS. DAP has warned PAS that Malaysia remains secular state i.e. there’s separation of Church and state based on the Biblical principle of “render to Caesar what is Caeser’s and to God what is God’s”.
Still, in Islam, human rights isn’t for the individual but the collective, for better or worse, and common humanity as in the ummah or universal brotherhood bound by common Faith.
Rule of Law Basis of Constitution
Islamic “law” practices aren’t possible in Malaysia as the rule of law was the basis of the Constitution.
Islam isn’t law but based on the concept of sin. That’s the same as Karma, the law of cause and effect, discovered by ancient India and found in the Holy of Bible, the Word of God, on the spiritual nature of truth. The Word of God, i.e. eternal laws based on eternal truth, remains synonymous with God in the Biblical tradition.
There was no God the Creator in ancient India but the universal belief, based on yoga practices, that great spirit — paramatma — permeates everything.
In Islam, sunnatullah means God’s law on cause and effect i.e. Karma.
Lawmakers Take Oath
If PAS lawmakers can’t accept the rule of law, despite taking the Oath on the Constitution, they should get on the imaginary camel and head for the imaginary desert.
The Constitution, being based on the ultimate political documents which set forth the governing institutions of state, has force of law.
The Constitution remains based on the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957 and the Malaysia Agreement 1963 (MA’63).
The governing institutions of state in Malaysia cannot be based only on 1948 and 1957. It must be based on 1963 as well.
There must be compliance on MA’63.
The rule of law, not legal term but political, isn’t imposed from outside.
It arises from within, from the Constitution, based on the ultimate political documents which set forth the governing institutions of state.
Law can be explained as there’s law, no law, and where there can be no law.
In China, the corrupt won’t be laughing all the way to the bank. They get bullet in the head. The family will be billed for the bullet. In Malaysia, the scapegoats for the corrupt will be jailed. Deja Vu!
No law, no crime.
There must be law before crime.
Nullum crimen sine lege (Latin for no crime without law), remains the principle in criminal law, national and international.
The principle is interchangeable with nullum poena sine lege (Latin for no punishment without law).
In jurisprudence, it isn’t possible for anyone to know law. Islamic jurisprudence, the religious variation, remains the road not taken by Malaysia.
Law, ultimately, remains the power of language, showing proof of wide reading, ability to think on law and like a lawyer, and ability to fathom how the other side and the judge would think and rule.
The judge was bound by what happens in court and parties in dispute on issues in conflict are bound by pleadings.
The court was about closure. There can be no closure without out of court settlement or finality in litigation.
Law schools, being based only on academic programmes, tell students that “it’s a bit of a mystery where lawyers get skills”.
Law schools don’t impart courtroom skills and skills for law practice. Academic programmes can only be used for teaching law.
Islam remains about the Tafsir (interpretation) concept in the Quran.
Islam needs Tafsir throughout the ages, from time to time, for progressive thought in keeping with the times. Otherwise, Islam degenerates into Political Islam i.e. a form of rotten politics.
Tafsir may bring Islam one day to the rule of law.
In that case, as in Saudi Arabia, syariah would be considered as being based on customary practices and therefore having force of law like Adat.
Adat is the 1st law in international law.
The Supreme Court of India has declared that syariah isn’t law but based on a person’s willingness to accept it. There’s lacuna (gap) in Malaysia on case law on syariah. The declarations in Commonwealth jurisdictions provide Advisory Opinion which can be written as case law.
It would be unconstitutional to impose syariah on anyone.
In jurisprudence, God isn’t source in law.
Law must have source to have jurisdiction, authority and power.
Law exists, and has always existed, based on common sense, universal values and the principles of natural justice.
Court of Law
The court of law is only about law.
The court of law isn’t about ethics, moral values, civilisational values including that based on Islam and/or Malaysia Madani, theology, sin, God, righteousness, justice or truth.
There’s greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law.
The letter of the law, by itself, isn’t law at all. It’s dictatorship, rule by law, rule by Man, and the law of the jungle where anything goes for acting with impunity.
There’s no legitimacy in the letter of the law, by itself, no democracy, no consent of the governed, and there has been loss of sovereignty.
In the rule of law, the manner in which the accused was convicted comes first. Conviction can follow if it has been perfected in law for perfection in law.
There must be compliance with procedures, procedural fairness, due process, and compliance with the greater emphasis on the spirit of the law in the rule of law, the basis of the Constitution, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all.
In every society, there must at least some people who will stop whatever they are doing — read looking for money — and work for the collective good. For example, on educating the people on the rule of law. It’s about labour of love.
The collective good mesmerises those who choose simple living and curling up with a good book.
There’s case for creating pleasant conversational settings, about agreeing to disagree like civilised people, and keeping the Debate in the court of public opinion going back and forth until the Last Word comes in.
It’s about our common humanity.
There’s no closure on issues in conflict between parties in dispute until we agree that it’s better settling out of court if there can be no finality in litigation. The court can only be about closure. — NMH
Footnote: Parts of this Article were adopted by human rights advocates in Sabah, Sarawak and Australia for literature used for public hearing on the rule of law.
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.