• Law to look into messy divorces
©New
Sunday Times (Used by permission)
I MUST apologise for saying upfront that I will not be so
bold as to declare that since we have the three arms of government –– the
legislative, the executive and the judiciary –– therefore, we practise the
separation of powers doctrine.
Separation of powers is desirable only if we believe that power corrupts, and
that a concentration of power in the hands of a few increases the risk of abuse.
Hence, the need to provide for checks and balances where power is concerned.
At the same time, many people believe that power need not be diluted since one
needs a strong central power to implement policies considered to be of national
interest. There is a large group of people who subscribe to this view.
I presume since you are all interested and well versed in the law, so you belong
to the category of people who subscribe to the need for separation of powers in
the political system of the country.
I, too, share this view, but for Malaysia to be truly on the
road to democracy and the rule of law, we need many more people to believe and
to work towards the implementation of this principle.
Before we discuss about the judiciary and all the changes we want to see happen
in this institution, let us talk about the law first.
Without laws to apply, of what use do we have of the judiciary? Many people say
they want a government of laws but they do not appreciate what it means. A
government which is mandated by the people's will must be ruled and governed by
the rule of law.
But laws must be applied to all and sundry with no exceptions, otherwise there
is no rule of law, instead we have an arbitrary rule dictated by whims and
fancies of some.
Laws and rules must be clear, otherwise arbitrariness sets in the application of
the rules.
Let's say we want to organise a concert featuring Indonesian dangdut singer Inul.
We have to apply to an authority and comply with the rules. But the rules have
to be clear, otherwise some people will present vague terms like morals and
sopan, which are subjective and difficult to define, as reasons for rejecting
the application.
Once the approval is given, the government should not review its decision just
because some Pas members threaten to demonstrate. If we relent, then the
government will be vulnerable to mobs who will protest whenever they do not
approve of an activity or concert or consider it inappropriate. Then we will
have mob rule, and not rule of law.
If we believe in the rule of law, then we also must understand that we must be
prepared to defend the principles established under our laws.
When the Bar Council organised a conference to discuss the implication of
conflicts of laws in marriage and divorce where one spouse converts to Islam,
they were bombarded with threats and physical abuse.
Where does the law of our country sit on this issue? Is the organisation of such
a forum which covers such topics a violation of the law?
If so, then the council should be taken to task and action should be taken
against its officers. But if what they did was undesirable or stupid, or lacking
in good judgment, then advice would be sufficient.
But if what they did was within the confines of the law, then in the ideal world
the law would be enforced to defend their rights.
If the police were seen to be defending those who were out to stop a legal and
legitimate activity or discussion, then do we uphold the law by doing so?
Racial abuses, inflammatory statements that Islam was under attack and the
climate of fear that would be created were raised in defence of their actions.
Again, they succeeded in stopping the forum. Again, the mob was successful,
because the police once again decided that the Bar was the culprit. So what is
the future of the rule of law in this country?
For your information, action against the council's forum is not necessary
because the government has drawn up laws to address the issues raised when one
party to a civil marriage embraces Islam.
A myriad of jurisdictional and conflict of laws issues have been examined. Laws
to address the issue of custody, maintenance and other relief arising of that
marriage have also been drafted: amendment to the Law Reform Marriage and
Divorce Act 1976, the amendment to Islamic Family Law Wilayah Persekutuan 1984,
and the Administration of Islamic Law Wilayah Persekutuan 1993.
These amendments will hopefully resolve the issue of divorce, custody and
maintenance where one spouse has converted.
These laws are in the final stages of review. These amendments will hopefully
resolve the issue of divorce, custody and maintenance where one spouse has
converted.
The attorney–general has done a marvellous job chairing a special committee
comprising officers from Jakim, civil lawyers, syariah lawyers, representatives
of muftis, Islamic scholars and law professors and representatives of other
religious faiths and political parties.
These compromises and discussions between groups took more than a year before
agreement was reached.
This episode goes to show that Malaysians of all faiths can sit down and discuss
issues and find solutions to problems of the people. It shows that Islam, if
left to the real scholars and experts, has the flexibility and capacity to find
solutions to all problems.
The tragedy of our time is that Islam has more often been used by politicians
and rabble rousers.
We do not need self–declared champions of Islam to storm meeting halls and
disrupt proceedings; or to increase the level of hatred among races . These
people are not capable of understanding and empathising with the real problems
the people are confronted with.
So they have no business declaring that they were demonstrating in and defending
God's name. A true believer must be prepared to find solutions to people's
problems and fight for justice for all. A good Muslim should know that.
Now about the courts. Judicial reform means that justice must be available
freely and easily to the people. The court system must facilitate that. People
should not be asked to wait many years to get justice. We all know that "justice
delayed is justice denied".
More importantly for me, judicial reform means that the judiciary must be
independent. It must be insulated from pressures, from directives and people
cannot and should not be allowed to bring their influence to bear on the courts.
Whoever sits on the bench must be of unquestioned integrity and ability. The
selection process of judicial appointees must be transparent, systematic and
open.
Restoring confidence in the judiciary is one of my priorities. It not only
sounds good; it is good for the country in many tangible ways. Studies all over
the world have shown that people do not invest in a country where they do not
have faith or trust in the legal system.
Hence, it makes business sense to have a credible judicial system. We have to
convince people that a system that operates under a shroud of secrecy is not
good for risk management and optimum operations of the economy, and for the
government itself.
More importantly, we need a mind–set change. Young people like you must not
perceive judicial reform and judicial change as undermining some cherished
political foundation. There are some people who perceive the change as limiting
their powers and these people always fear that they will be made worse off by
the change.
Some are made to feel that the more opaque the system, the more secure they
feel. Therefore, they feel threatened when we say we want openness and processes
driven by transparency.
Judicial reform and law reform are intertwined. The courts, as an institution in
the pursuit of justice, does not operate alone. If we want to reform the law and
the justice system, we also need to reform the police and the office of the
attorney–general.
How the police exercise their powers of investigation; how the public prosecutor
makes his decisions to prosecute or not to prosecute; how transparent and
accountable the office of the public prosecutor or attorney–general is; what
benchmarks are set by the police and the A–G are all processes which are part of
the justice system.
The reforms I have in mind will include reforming the Attorney–General's
Chambers.
The police are the mother of law enforcement and the exercise of their
enforcement powers must be fair, professional and in accordance with the
dictates of the law.
Any negative perception must be removed. Public complaints must be handled
properly, devoid of any semblance of abuse of power.
The setting up of a commission has been suggested by the Royal Commission
chaired by Tun Mohamed Dzaiddin Abdullah.
The prime minister has also agreed that a special complaints commission be
established and it is one of the things in the pipeline for law reform.
Full Text of the speech delivered by Minister in the Prime Minister's Department
Datuk Zaid Ibrahim at the Malaysia Multimedia University yesterday.