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©Malaysiakini
(Used by permission)
by Andrew Ong and Fauwaz Abdul Aziz
Malaysians enjoy freedom governed by law regardless of whether Malaysia is
dubbed an Islamic state or not, said Human Rights Commission of Malaysia (Suhakam)
chairperson Abu Talib Othman.
In a two-hour interview with malaysiakini, Abu Talib disagreed with
suggestions that declarations of Malaysia being an Islamic state had
implications on human rights.
“The fact is that an Islamic state does not affect human rights. You can do what
you want, provided that your actions are within the law and with respect to
other people’s rights,” he said.
Stressing that he was speaking in his personal capacity, Abu Talib expressed
indifference to whether Malaysia was labeled an Islamic state or not.
“It doesn’t really matter to me so long as I’m not forced to do anything against
my will... That’s the basic premise,” added Abu Talib, 69.
Deputy Prime Minister Najib Abdul Razak sparked furore in July among non-Muslim
minorities when he reiterated claims that Malaysia was an Islamic state.
Legislating religion
To question on the apparent reluctance by Civil Courts judges to hear cases on
religious conversions, Abu Talib said the courts should not shirk from its
duties.
“Don’t just take the easy way out and chuck it out. That’s not the way the
courts should function. The court should deliberate on the functions of the law,
analyse the law.
“As in the past, you could see pre-1993, the judgments were all well-reasoned.
They analysed the applicable law, they identified weaknesses of the law and
suggestions in some cases that ‘this needs to be done,’” said Abu Talib, who
served as attorney-general from 1980 to 1993.
Abu Talib also pointed out that religion cannot be legislated as it was and that
several examples in the Middle East have shown problems arising from such
attempts.
“The more you legislate on it, there’ll be more trouble. How can you legislate
on belief, on the faith of a person? You cannot!. Attempts to legislate on
religion will invite trouble. That is my personal view,” he said.
As the government is expected to amend legislations in dealing with such
matters, Abu Talib cautioned government advisers to be prudent in conceiving any
new law.
“The government is not lacking in legal advisers. I’m not the government’s legal
adviser, unfortunately,” he quipped.
‘Not pressured’
Abu Talib also refuted suggestions that Suhakam could not function effectively
due to pressures from the government. Instead, Suhakam “engages” the government
and their various departments based on the issues at hand.
“These exchange of views cannot be construed as pressure. Of course, no
government servant likes to be crticised so they try to justify (their actions).
But my view is, if something is wrong, however you attempt to justify it, it is
still wrong,” he said.
Abu Talib also denied that the government had intentionally ceased the services
of ‘more vocal’ commissioners, such as former Chief Justice of Malaya Anuar
Zainal Abidin and former Federation of Malaysian Consumer Association chief Prof
Hamdan Adnan.
According to Abu Talib, the Suhakam chair has no hand in the selection of
commissioners nor was he privy to the basis of appointments made by the
government.
He maintained that Suhakam’s present crop of commissioners too had consistently
criticised the government and several departments over similar human rights
violations such as police abuses and the use of the Internal Security Act.
Q&A: Suhakam 'undeterred' by
criticisms
by Andrew Ong and Fauwaz Abdul Aziz
Since its inception in 2000, Suhakam has often been
criticised as a ‘toothless tiger’ because of the perception that it is often
ignored by the government.
Suhakam chairperson Abu Talib Othman however said his 18 commissioners and
other staff are undeterred by such criticisms and would continue to
discharge their duties accordingly.
In an interview with malaysiakini on Tuesday, Abu Talib also
discussed creeping religious elements in the judiciary and society.
This is the final segment of the three-part series which features excerpts
of the interview.
 Malaysiakini: Aren’t you frustrated that Suhakam’s recommendations
and reports are met with inaction?
Abu Talib: We are not deterred whether people condemn us,
people criticise us or people ignore our reports. I accept the fact that
there are levels of authorities. You ask me what are the remedies. The
remedy is at the hands of the people.
Suhakam is established under the law passed by Parliament. Parliament
consists of members of Parliament. Who elects them? Don’t fault Suhakam. Who
elects members of Parliament? It is the people.
There are also people who argue that Suhakam should do more on its
part...
The law is drafted in such a way that we have no enforcement powers. The law
clearly states that we can only advise. If the person that we advise don’t
act on our reports, there is nothing we can do.
There is nothing we have not done. You’ve seen our reports. You’ve seen some
of my statements which are very strong. I mean it. Because I feel strongly
that the there must be justice. We talk about promotion and protection of
human rights, we malaysians deserves more than mere promises.
Does Suhakam hold briefing for MPs regarding its findings and
reports?
We are only required to submit our reports to Parliament. There was one
instance where the human rights caucus members came here for a discussion...
but mind you, our powers are limited.
Does Suhakam seek to have more powers?
The first batch of Suhakam commissioners submitted a recommendation to the
government to suggest some amendments which to the views of members then,
would help further promote and protect human rights effectively.
But nothing has been done about that.
It comes back to Parliament. It comes back to the commitment of the members
of Parliament. Everybody ask me what can we do. We are not deterred. We will
do as much as we can as permitted by the law.
Does Suhakam face pressures from the government?
No. Not that I know of. From our report, you can see that we do not
compromise on our functions. As far as I know, we have not received any
pressure. We engage with the government. They tell their side of the story
and we tell them how to do things based on human rights principles.
These exchanges of views cannot be construed as pressure. Of course, no
government servant likes to be criticised so they try to justify (their
actions). But my view is, if something is wrong, however you attempt to
justify it, it is still wrong.
How often do you have meetings with government representatives?
We have meetings with the police, Ministry of Home Affairs, Internal
Security Ministry, immigration people.
Is Suhakam still under the deputy prime minister’s office?
Administratively yes. I met him (Deputy Prime Minister Najib Abdul Razak) a
few times. We had discussions with him. He said he would take it up.
But then you have situations where certain commissioners - Anuar
Zainal Abidin, Prof Hamdan Adnan (photo) - they're being bumped off
the team. Wouldn’t that be seen from your perspective that the government is
not happy with certain commissioners?
I cannot speak for the government and people who make these appointment. I
can’t comment. I was not with the commission at that time.
But Hamdan...
He was with me (at the time). But there were other issues which perhaps were
relevant in considering the appointment. I have no say. I have no hand. I
don’t know the basis of appointment. According to the law, it has to be
someone of prominence. But you criticise pensioners, people like me.
But these are commissioners who are seen to be tackling issues which
seem a little more controversial such as visiting detention centres and
chairing controversial public inquiries. Suddenly, they are not reappointed.
We have many new commissioners who are actively visiting detention centres.
They are still there. I don’t want to be drawn into this because I have no
basis to say right or wrong.
So you are saying that there are other reasons...
Maybe so. We operate based on the powers vested in us. We must also accept
areas of other people’s jurisdiction. As we don’t want people to trespass in
our areas, likewise we must respect that. What is human rights? Respect for
each other’s rights.
In this modern democracy, the people are the judge. The people are the king
makers. They are the judge. The power is in the people, not in Suhakam.
Wouldn’t you think the government is sending the message that ‘if
you are too active on certain issues’ you would not be reappointed?
I don’t think so. You have a look at our annual report, we have said it’s
time to (abolish) ISA. We explained to them various reasons why. As for the
police, we tell them that they cannot go on beating people.
We are also very clear, as a matter of policy, that if there is any death in
custody and there is no inquest, we would hold an inquiry. I can tell you of
one case, we wanted to hold an inquiry and the police (immediately) put up a
paper (applying) for an inquest. Otherwise, the deceased family would be
left without any remedy.
Let’s talk about something that is really in your heart - the issue
of Islam and the Islamic state. How do you feel about the fact that this
talk about Islamic state, and now that we are approaching the 50th
anniversary of Merdeka. What’s your message?
I hold this view: religion is very personal. You cannot legislate on any
religion, because it is a question of faith and belief. Each religion has
its own beliefs. You can’t change that...
Of course, (there is ) this question of court pushing (cases) left and
right. The court has come out with a latest judgement (that) Parliament
should resolve it. It is for Parliament (to decide). It may be a question of
law, or it may be a question of constitution provisions. The government is
not lacking in legal advisers. I’m not the government’s legal adviser,
unfortunately.
Is it a lack of will (on the part of the government)?
I don’t know. I can’t say (that). But, I hold (to the belief) that you
cannot legislate (on) it. The more you legislate on it, there’ll be more
trouble. How can you legislate on the belief, on the faith of a person. You
cannot.
My personal view is you’ll have more trouble if you attempt to legislate on
religion. You’ve Buddhists, you’ve Christians, you’ve Muslims. How can you
legislate? You legislate one, another one will have a problem. How do you do
it? I hope whoever is responsible in advising the government will consider
it very carefully and very seriously before coming out with any legislation.
My view is don’t come out with an ill-considered legislation on religion.
So with regards to conversions and apostasy, what you’re saying is
not to legislate on such matters.
You cannot legislate things which are inconsistent with the tenets of that
religion. You cannot legislate, because if you legislate and you wrongly
legislate, you’ll have problems. We have seen in Turkey, we have seen in
Lebanon. I’m sure the government has the benefit of good legal advisers and
many other people more versed in religion.
You do recognise that in recent years, there’s been growing problems
in terms of the court not so willing to take up such issues. It’s only until
the recent judgment. Why is that? Why are suddenly these issues cropped up?
I’ve said it before, and I’ve been criticised for it, but I think the court
should not shirk from its duty. That’s why we go to court, if there is a
dispute. Don’t you think so? It’s for you to rule (something) is right and
wrong and to tell us what is right and what is wrong. Don’t just take the
easy way out and chuck it out. That’s not the way the courts should
function.
The court should deliberate on the functions of the law, analyse the law. As
in the past, you could see pre-1993, the judgements were all well-reasoned.
They analysed the applicable law, they identified the weakness of the law,
and they suggested in some cases that ‘this has to be done.’
Some of the former judges did say that there are judges who find it
very hard to rule against their conscience.
Please excuse me for saying this, but the judge only has a pencil and the
law books. True to his oath, he should respect the law and the constitution.
Those are the materials he has to look at. If his conscience is against the
law, as a judge the law prevails. He has to accept that. Don’t you think so?
Otherwise, he does not rule in accordance with law. Any judgement
inconsistent with (the) law is unacceptable. That’s my view but I’m sure my
colleagues in Suhakam will agree with me.
In a earlier case, a five-member panel of (Supreme Court) judges
have ruled that 121(1A) is not an impediment for them to rule on such cases.
Do you think there’s been some inconsistencies between then and now?
That has to be answered by the court. I cannot comment on that. I cannot say
what the law is because I’m no longer a lawyer. It stills boils down to a
human rights issue.
From a human rights perspective, you should respect other’s religions, and
one must be very cautious on legislating on religious beliefs. I still hold
that it would not be appropriate to legislate on religion.
Your position is that it’s better that they don’t legislate on
matters of religion.
It’s the duty of those clergymen, the councils of Islamic religious affairs,
to explain what (religion) is. For example, conversion, they should somehow
(set out) that this is the way, before you can convert, one party (must be
told) these are the set procedures, so everybody understands before they
convert to Islam. Not go behind (the back way). That should not be.
Today is the world of openness. It has to be done openly. There’s nothing to
hide about religion. If you want to hide, then of course, he is converting
not because he believes in that religion, then there must be (other
reasons), then there’s where the problem (starts).
There are people who are converting for other purposes,
but some are converting for reasons we understand because they want to get
married. Then that’s where the complications arise.
That’s why I said it’s a matter of education. I can’t talk about
Christianity, or Hinduism, but I think in Islam it’s quite clear. You have
to be convinced. You can only convert because you believe in that faith.
There are restrictions (as) there are in any (other) religion. Are you
prepared to accept those restrictions. You cannot go in and go out as if you
main main (not serious). That should not be the case. Then, you’re
playing with God. I think that is more sinful. That is my personal belief.
Given that one of the tenets of the Universal Declaration of Human
Rights says every individual has freedom of religion, how would Suhakam
interpret Article 11 in the Federal Constitution?
People look at the 1948 Declaration in isolation. Freedom of religion,
freedom of speech, but they don’t read 29(2), which is not there in a
vacuum. It was intended for a purpose, that all these freedoms must be
subject to some restrictions, otherwise you make nonsense of this balance
(between) the interests of the individual and the interests of the general
public.
(Article 29:(2) In the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society;)
I think 29(2) must have been drafted for that purpose. There’s no such thing
as absolute freedom in anything. Even our parents do not have absolute
freedom (over us) as parents. They cannot beat us brutally. It is not
against human rights (to limit freedoms) because by your act can cause
injury and hence the right of the (other) persons.
I think that’s why 29(2) was put (in the Declaration), but nobody wants to
talk about 29(2). (When) I raise it (they say) ‘it must be considered as a
whole’. What do you mean as a whole? It is at the bottom, and it is drafted
independently and does not say it is subject to a, b, c, d, (or) e. Why
can’t people some time give thought to 29 (2)?
There are some people who claim the statement that Malaysia is an
Islamic state has implications on human rights.
I disagree with you. The fact that it is an Islamic state
does not affect human rights. You can do what you want, provided that your
actions are within the law and with respect to other people’s rights.
So for you, it doesn’t really matter whether Malaysia is an Islamic
state.
It doesn’t really matter to me so long as I’m not forced to do anything
against my will, and I’m not forced to do anything which other people can do
and I cannot do under the law. That’s the basic (premise). It doesn’t really
matter to me whether it is an Islamic state or whatever, so long as your
rights are protected under the law.
Some people say that with the Islamisation process over the years,
such a message that Malaysia is an Islamic state would boost or embolden the
proponents of the Islamisation process.
There is no Islamisation process. There is no such thing as that. You choose
your religion. The government today works on the basis of Constitution and
the law. To me it doesn’t really matter. Otherwise, why would (our)
forefathers accept Islam (as) the state religion? No one is restricted from
practicing the religion of your choice. There is a balance. But all these
things, you know, people put all these interpretations which is not
(provided) there, and it causes confusion.
The fact that I said it doesn’t matter is my personal view, and not
Suhakam’s.
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