The Constitution enshrines freedom of conscience and/or religion in Article 3 (religion of the Federation), Article 8 (no discrimination), Article 11 (freedom of religion) and Article 12 (right to education)!
Commentary And Analysis . . . The perennial issue in the civil court and/or syariah court with the MyKad or Identity Card (IC) isn’t about leaving religion. It’s about having no religion in the MyKad issued by the National Registration Dept (NRD) under the National Registration Act 1959/1963. The Syariah court, which isn’t a court of law, has no jurisdiction over the 1959/1963 Act.
The MyKad, besides being proof of identity in law, remains proof of freedom of conscience as enshrined in the Constitution under Article 3 (religion of the Federation), Article 8 (no discrimination), Article 11 (freedom of religion) and Article 12 (right to education).
NRD
The civil court, the syariah court, and the NRD cannot get into leaving or entering religion.
The court and the Constitution, being colour-blind, cannot get into “race”, religion, theology, DNA, and geographical origin or pendatang (outsiders) and orang asing (foreigners). Orang Asal (original people) and Orang Asli (aboriginal people), those unfamiliar, are about ancestral and historical property rights protected by Adat and the Constitution.
Discrimination
In law, Article 8 in Malaysia, there can be no discrimination save as provided by law i.e. there must be a sunset clause with an expiry date. The sunset clause can be removed before the expiry date but there can be no discrimination. There can be no law on extending the sunset clause. No one was above the law, all are equal before the law.
It can be argued, taking the cue from the plight of former Prime Minister Datuk Seri Najib Tun Razak in jail under arbitrary detention since 23 August 2022, that Malaysia may not be upholding the rule of law. It risks degenerating completely into the letter of the law, by itself, as law.
The current state of affairs in the court system and/or judiciary probably reflects the lack of skills among the legal fraternity for law practice and courtroom skills as the mentor system no longer exists. The blind may be leading the blind. The court’s hands are tied on the lack of skills. It can only rule on what’s placed before it.
The law schools are no help. They have long cautioned students that they don’t impart skills. Besides, it isn’t possible in jurisprudence for anyone to know the law.
NRD No Discretion
The NRD has no discretion on religion in the MyKad. It’s an abuse of power if NRD does not remove, upon correction form being duly filled by the holder, any religion from the MyKad.
Those who file cases in court, civil or syariah, on leaving religion and/or entering religion, may be barking up the wrong tree. The lawyers should know better.
NRD may also be handing out Malay MyKad allegedly in violation of the Definition of Malay as a “form of identity” in Article 160(2).
Muslims, habitually speaking the Malay language and born or domiciled in Singapore or Malaya by Merdeka, 31 August 1957, are Malay by “form of identity”.
In short, the Malay Definition was about Constitutional Malay.
Their descendants are Malay and practising Islam which came from outside.
The MyKad, as proof of identity, may have in fact collapsed and imploded after the 12 year war (1948 to 1960) against communism terrorism in Malaya ended.
The MyKad or IC (identity card) was introduced by the British to identify and separate the communist terrorists from the general population. In law, the birth certificate, entry permit secured by foreigners, or police report lodged by illegal immigrants on their status are first “proof of identity”.
Ironically, even PTI (pendatang tanpa izin or illegal immigrants) in Sabah, for example, may be holding blue MyKad (citizen). The 2013 Royal Commission of Inquiry (RCI) Report on Projek IC Mahathir refers.
The news gets worse. Article 160(2) on the Definition of Malay as a “form of identity”, and the related Article 153, Article 3, and Article 152 have all been rendered redundant since 1972 when the sunset clause in Article 153 ended. The related Order 92, Rule 1, of the Rules of the High Court 2012 (national language) was also redundant as Bahasa Melayu hasn’t been in official use since Bahasa Malaysia emerged, but not only as a term, after 13 May 1969. More on this shortly.
In law, Article 4 in Malaysia, if invalid laws remain in the books, they are still valid unless removed by the court or Parliament.
Bahasa Indonesia Not Bahasa Melayu
The 127K word Bahasa Indonesia was the elephant in the room on Article 152. It can’t be said that the 20K word Bahasa Melayu, the 40K word Bahasa Malaysia and the 127K word Bahasa Indonesia are all one and the same language.
Bahasa Indonesia isn’t Bahasa Melayu spoken differently as backdoor Prime Minister (August 2021 to November 2022) Datuk Seri Ismail Sabri claimed during his time.
Ismail Sabri wanted Bahasa Melayu as the 2nd official language of Asean. Indonesia rejected the idea. English was the 1st official language of Asean. Indonesia concedes that even Bahasa Indonesia can’t be the 2nd official language of Asean as probably no one elsewhere speaks the language.
The 127K word Bahasa Indonesia, based on the 20K word Bahasa Melayu, has 107K loan words from other local dialects and languages, Dutch and English. Dutch words make up quarter of Bahasa Indonesia.
Bahasa Melayu as habitually spoken in Johor, Rhio, and Lingga was the national language of Malaysia as implied in Article 152.
Bahasa Melayu may be back in the pasar from where it came. It appeared in the Archipelago as Khmer dialect with loan words from Tamil, Sanskrit and Pali. Later, some Arabic loan words crept into Bahasa Melayu when Islam entered the Archipelago.
In a sentence of 10 words in Malay, according to Google, six to seven words are Sanskrit.
Bahasa Malaysia has taken over from Bahasa Melayu, unofficially, for official purposes. Malaysia has national language, albeit on paper, in Article 152. The existence of vernacular schools shows that Malaysia has no national medium of instruction. The vernacular schools have since become national schools as well. The students, who also come from non-Tamil and non-Mandarin speaking background, assure the continued existence of these schools.
Bahasa Malaysia Not Bahasa Melayu
It’s wrong to call Bahasa Malaysia as Bahasa Melayu.
Universiti Malaya linguist Dr Asmah Omar frequently cautions in the media that “the “Malay people and/or race will lose their identity if Bahasa Melayu was called Bahasa Malaysia”.
The Definition of Malay in Article 160(2) as “form of identity” does not speak of Malay nation and/or “race”.
There’s case law on Definition of Malay as “form of identity” from the High Court of Malaya . . . Petmal Oil (Malaysia) Sdn Bhd v Che Mariah Mohd Tahir (Trading As Delta Mec Enterprise) [1994] 3 CLJ 638.
Other Muslim in Malaysia are not Malay by “form of identity”. It’s abuse of power that the NRD hands out Malay MyKad for virtually every Muslim Tom, Dick and Harry even if they habitually speak Malay. The 1st Prong (Merdeka) and 2nd Prong (language and religion) in Article 160(2) should be read together.
In short, Muslim in Sabah and Sarawak and converts after Merdeka in Malaya are allegedly holding bogus MyKad listing Malay as “form of identity”. They should be in the Lain Lain (Others) category or stated as Dayak Sabah, Dayak Sarawak, Filipino, Indonesian, among others, in the language category.
In law, the Malaysian people and nation arises from the nation-state concept based on the rule of law in the Constitution. Bahasa Malaysia remains the Malaysian language.
“Race” can be explained.
All human beings — homo sapiens — have the same DNA separated from other species by genetic barrier of millions of years against procreation. Species, in short, implies procreation within itself. It’s misnomer that language, culture, and related areas are seen as “race”. There’s only one human race i.e. homo sapiens.
DNA was the warehouse for genes i.e. the instruction material for making the human being based on energy, intelligence and luck. There are no genes for blue, grey and green eyes and blonde hair.
The brown genes first disappeared in north India. That left the eyes exposed as blue, grey, green and the hair blonde.
Pigment cells are immune system phenomenon created by sunlight falling on the skin and causing stress. That creates more or less pigment cells. Pigment cells unleash melanin which prevents the eyes, hair and skin burning up in the sun.
Many people in the mountain valleys in north India have, until today, blue, grey and green eyes and blonde hair. They have fewer pigment cells.
Blue, grey and green eyes are not rare in other parts of India including in the south where people generally have more pigment cells. The people in the south came from the north.
Buddha for example, it’s often not known, had blue eyes, goldish hue complexion, and hair worn in small curls.
Article 8
The issue in Malaysia isn’t “race” and religion based on the MyKad. The issue arises from political personality cults promoting radicalisation based on religion, clannishness, tribalism and feudalism, under the guise of democracy, as euphemism.
The Constitution cannot go against itself.
In law, the majority means the number of lawmakers in Parliament voting for gov’t Bill.
If the number was less than 51 per cent of the lawmakers present in Parliament, the majority was clearly on the other side, being united on the Bill.
There’s no “race”, religion, colour, caste, gender or political parties in Parliament.
There are only lawmakers in Parliament elected by the majority in the constituency and pledged on serving all. If the lawmaker was elected by less than 51 per cent of the voters, there’s no consent of the governed, no legitimacy, and there has been loss of sovereignty.
In case where no one gets majority in a seat, based on practices in other democracies, there should be runoff between the top two contenders.
The seat belongs to the lawmaker. It comes under property rights protected by Article 13 (property rights), Article 5 (right to life), Article 8 (no discrimination) and Article 10 (free association).
In law, minority means the losing votes in a constituency.
In some democracies, the losing votes are tallied and given non-constituency seats in Parliament through parties which won no seats.
In law, Article 4 in Malaysia, an inferior law — read sunset clause, Sabah anti-hop law and 16 Kelantan syariah, among others — was null and void by the extent of inconsistency with the superior law.
Article 153 became redundant in 1972 when the 15 year sunset clause — it was removed after 13 May 1969 — ended.
Other Articles which have been rendered redundant are related and facilitating Articles viz. the Definition of Malay as “form of identity” in Article 160(2), aberration in law Article 3 (Islam), Article 152 (national language) and Order 92, Rule 1 (national language) of the Rules of the High Court 2012. — NMH
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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.
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