If you are a registered user of the Malaysian Bar website, you may click here to view the report of this committee from the 2016/17 Annual Report. A longer version of the report follows below.
CONSTITUTIONAL LAW COMMITTEE
Roger Chan Weng Keng (Chairperson) | Elaine Gan Peay Er (Co–Deputy Chairperson) | Melissa Sasidaran (Co–Deputy Chairperson) | Surendra Ananth (Co–Deputy Chairperson) | Adibah Shareen bt Sh Abd Rashid Al’ Ayubi | Alicia Ng Yan Ying | Allison Ong Lee Fong | Aston Philip Paiva | Au Yong Wai Nyan | Chew Ming Ling | Chia Kwok Wei | Chris Tan Yew Hong | Colin Andrew Pereira | Daniel Cheong Chun Hui | Daniel Joseph Albert | Edmund Bon Tai Soon | Farez b Mohd Ali Jinnah | Firdaus bt Husni | Hon Kai Ping | Joanne Leong Pooi Yaen | Kenny Wong Kit Lee | Kiattilin d/o Sommat | Kong Teng Mun @ Jason Kong | Kwan Will Sen | Larissa Ann Louis | Lee Choi Wan | Leong Jing Jing | Liaw Vern Xien | Lim Hun Ni, Christine | Lim Wei Jiet | Marcus Tan Kian Han | Ng Zheng Hui Charlie | On Xiu Tao | Ragumaren s/o Gopal | Rajsurian Pillai s/o Chellappa Pillai | Shamala Devi d/o Balasundaram | Shanmugaiah s/o Chelliah | Sonya Liew Yee Aun | Soon Jeong Guan | Haji Sulaiman Abdullah | Syahredzan b Johan | Tiu Gi Gyn | V Sreedaran Nair s/o A Veloo Pillay | Varpal Singh s/o Menender Singh | Vicneswary Jayabalan | Vince Chong Khin Young | Vivian Kuan | Wong Tian Hong | Wong Yih Shan | Yang Pei Keng | Yeoh Tung Seng | Yohendra s/o Nadarajan | Anusha d/o Gopala Krishnan (Officer) | Muhammad Bazli Naim b Abdul Azid (Administrative Assistant)
Abdul Aziz Bari | Abdul Wahab b Jumrah | Adilah bt Nasir | Alan Lim Tyng Chieh | Andrew Low Choo Zeet | Anita Shukla Sharma | Bernard Chiew Chia Shern | Bryan Anderson Kung | Chelsea Ng | Chin How Zet | Chong Lip Yi | Chong Pei Yen | Christine Lim Hui Xien | Cilia Chong | Daniel S Abishegam | Danny Choong Ewe Leong | David Siaw Ting Cheng | Dennis Lau Yee Meng | Derrick Oon Wei Zun | Harchanadevi d/o S Arivanthan | Jessie Wong | Joachim Leong Ming Yoong | June Low Cheng Yen | Kamalis Waran | Karl Rafiq b Nadzarin | Lau Sian Lerk | Lee Horng Qing | Lee Sim Kuen | Liew Yen Fern | M Jay Raj s/o P Muresh | Maggie Cheong | Malcolm Ng Sze Cun | Mary Anne K Baltazar | Melissa Linda Dass | Mohd Fairul b Mohd Ramzi | Mohd Fyrolikram Othman | Mohd Khairi Said | Nazarius Celcius Dorus | Neo Hwee Yong | Ng Chun Hau | Ng Seng Yi | Nurashidah Hamidon | Nurkhalida Farhana bt Abu Bakar | Nurul Natasha Abdullah Sani | Oh Wee Chew | Pang Jo Fan | Paul Linus Andrews | Phang Chiao Hau, Jackson | Pradeep Singh s/o Arjan Singh | Quek Yiing Huey | Rais Imran b Hamid | Raymond Wong | Rayneni Asogan | Richard Yeoh | Rina Tung | Roger Chin | Samuel Leong Chan Yan | Sandra Lee Yen Ping | Satnakuna Devi d/o Ramulu | Sempurai Petrus Ngelai | Shahira Sulaiman Sha | Siew Yi Jin | Siti Sarah Nadiah bt Suliman | Sr Jossie Sili | Suganthi d/o Mayakrishnan | Suriyanandhini s/o Soraisamy | Syahira Rahim | Tan Chee Tong | Tan Chiew King | Tan Lee Chin | Tan Sue Yinn | Tan Wei Liang | Tania Pillai d/o Velasamy | Vincent Tong Wei Leong | Wong Chin Huat | Wong Jye Mei | Wong Poai Hong | Yap Li See | Yap Mei Yan | Yin Shao Loong
The Constitutional Law Committee ("ConstiLC") met twice during the period under review. ConstiLC conducts its discussions mostly through e–mails over the robust e–group and through meetings in smaller groups.
The MyConstitution Campaign was launched in 2009 and originally slated to run for two years. Due to its overwhelming success, ConstiLC decided to extend that time frame. The agenda to Merakyatkan Perlembagaan continued this term with various activities, either on its own initiative, or in collaboration with, or upon invitation of, other organisations.
One of ConstiLC's biggest achievement is its ability to reach out to youths through its workshops, creative (and at times unconventional) public information activities and the use of social network tools such as Facebook (www.facebook.com/PerlembagaanKu/MyConstitution), Twitter (@MyConsti), Instagram (@myconstitution), YouTube channel (www.youtube.com/perlembagaanku) as well as the campaign's dedicated website, www.perlembagaanku.com. Currently, the MyConstitution Campaign has garnered more than 13,987 likes on its Facebook page and over 7,855 followers on its Twitter page, where tweet updates of ConstiLC's events are consistently provided to the followers. MyConstitution App containing the Rakyat Guides booklets and Rakyat Service Advertisements is now also available for iPhone and iPad users.
Activities for the Term
This term, ConstiLC increased its efforts to reach out to as many civil society groups and organisations as possible, by conducting workshops, forums, talks and other public information events. ConstiLC's countless outreach programmes for students from secondary schools and universities, lawyers, members of the media, religious institutions, non–governmental organisations ("NGOs"), political parties, Orang Asli communities and the general public, have spanned no less than seven states in the country.
The events that ConstiLC is involved in are summarised in the following table:
|19 Dec 2015||Public Forum on "Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?"||Bar Council Raja Aziz Addruse Auditorium, Bar Council|
|23 Jan 2016||MyConsti workshop for members of the Malaysian Nature Society||Pahang Bar|
|13 May 2016||High Tea/Luncheon with the National Union of Journalists Commemorating Press Freedom Day||Shah's Village Hotel, Petaling Jaya|
|28 June 2016||Talk on Women's Rights at the Workplace||SEGI College|
|2 July 2016||Preparatory Seminar and Workshop on Gearing up for Redelineation||Bar Council Raja Aziz Addruse Auditorium, Bar Council|
|22 July 2016||MyConsti workshop for ASASI interns from United Kingdom and Eire's Malaysian Law Students' Union ("KPUM")||Pusat Rakyat LoyarBurok ("MCCHR"), Pantai Business Park|
|29 July 2016||MyConsti workshop for ASASI interns from KPUM||Pusat Rakyat LoyarBurok ("MCCHR"), Pantai Business Park|
|31 July 2016||Workshop for Miss Malaysia Miss Global Intercontinental Malaysia 2016||One City (PC Room)|
|26 Nov 2016||MyConsti workshop||Brickfields Asia College Petaling Jaya Campus|
(1) Public Forum on "Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?" (19 Dec 2015)
ConstiLC organised a public forum entitled "Whither the Federal Constitution — Do Fundamental and Minority Rights Matter?" on 19 Dec 2015 at the Bar Council Raja Aziz Addruse Auditorium, Straits Trading Building. The public forum commenced at 9:50 am with Melissa Sasidaran, the master of ceremonies, inviting the then–President of the Malaysian Bar, Steven Thiru, to deliver the opening address.
Steven Thiru, in his speech, raised concerns that recently–decided constitutional cases appear to suggest that the interest of the State prevails over the constitutional rights of citizens. He highlighted a string of cases recently decided by the apex courts, which brought into question several points for discussion:
(a) Supremacy of the Federal Constitution;
(b) Courts as the guardians of the Federal Constitution, being looked upon to protect fundamental rights and minority rights; and
(c) Independence of the Judiciary.
The line–up of speakers for the forum was as follows:
(a) Dr Azmi Sharom, Associate Professor of Law, University of Malaya;
(b) Aston Paiva, Member of the Bar; and
(c) Andrew Khoo Chin Hock, Co–Chairperson, Bar Council Human Rights Committee.
Dr Azmi Sharom presented his views on the ZI Publications Sdn Bhd & Ezra Zaid v Kerajaan Negeri Selangor & 2 Ors (Ezra Zaid's case) and shared with the audience his own experience in challenging the constitutionality of the Sedition Act 1948.
Aston Paiva then provided an overview of the transgender case, State Government of Negeri Sembilan & Ors v Muhammad Juzaili & Ors, in which he represented the defendants. He also shared briefly on the constitutional challenge to the Kelantan Syariah Criminal Code (II) (1993), which was dismissed by the Federal Court.
Next, Andrew Khoo Chin Hock spoke about the See Chee How & Anor v Pengerusi Suruhanjaya Pilihanraya Malaysia case, concerning the delineation exercise in Sarawak. In addition, he expounded on the freedom of assembly and the Court of Appeal's decision in Public Prosecutor v Yuneswaran A/L Ramaraj, which contradicts an earlier decision by the Court of Appeal in Public Prosecutor v Nik Nazmi.
After the presentation by all three speakers, they were invited again on stage for a panel discussion together with retired Court of Appeal Judges, Dato' Mohamad Ariff b Md Yusof and Dato' Mohd Hishamudin Mohd Yunus. Firdaus Husni, then–Co–Chairperson of ConstiLC, moderated the panel discussion, which began with brief comments from the two retired judges.
Dato' Mohamad Ariff emphasised that the Federal Constitution is not like any other ordinary law. Rather, it is a special law and should be treated that way. Dato' Mohd Hishamudin stressed, among others, that judgeship is a public trust, and on no account must that trust be betrayed.
The discussion then continued with a question–and–answer session with the audience that covered a wide range of issues, including constitutional democracy, interfaith dialogues, judicial appointment and promotion, and how respect for human rights corresponds with a country's economic progress.
(2) MyConstitution Workshop for Members of the Malaysian Nature Society, Pahang (23 Jan 2016)
On 23 Jan 2016, six members from ConstiLC and the Bar Council Environment and Climate Change Committee ("ECCC") embarked on an exciting and long–awaited journey to Kuantan, Pahang, to conduct a MyConsti workshop. This workshop was organised in collaboration with the Malaysian Nature Society ("MNS") Pahang Branch.
With the bauxite mining issue taking centre stage in domestic news, members of MNS Pahang Branch, and the public in general, were keen to be informed of their constitutional rights, particularly in terms of environmental rights and the relevant laws.
The workshop kicked off at around 11:00 am with the "Where do you stand?" module. Each participant chose whether to agree, disagree or remain neutral on various statements that were read out. Participants were required to explain their choices, and the session saw a lively and spirited discussion.
The workshop then proceeded with the "Reconstitution Earth v. 2.0" module, where the participants were divided into two groups. It was a buoyant session as the groups had different sets of citizens on their respective "planets". This sparked a thought–provoking debate as to the differences in choices.
After lunch, the groups had to name 10 items that they deem to be essential in life. However, the groups were not told that it should be a constitution or a piece of law. Both groups covered almost 90 percent of the rights in the Universal Declaration of Human Rights ("UDHR") — which contains 30 articles — with just 10 "items". At this point, the UDHR was not yet shown to the participants. This reinforced the principle that the rights stipulated in the UDHR are innate to human beings and flow naturally from our inner selves.
Next was the presentation of the various fundamental rights in the UDHR and in the Federal Constitution. Needless to say, the participants already had a strong grasp of the various rights. The final session, at about 4:00 pm, was a presentation by Roger Chan Weng Keng — then–Chairperson of ECCC — on environmental rights with reference to the bauxite mining issue. Roger gave a detailed analysis of former and existing legal framework on environmental laws in Malaysia. The participants were keen in finding out ways on how to hold the relevant parties responsible for the environmental damage caused by the bauxite mining.
It was indeed very inspirational to see that the public are willing to fight to have their rights upheld despite how the Lynas litigation turned out. One would expect the public to be jaded after seeing the manner in which the courts treated the Lynas case. The participants from Kuantan were a true testament and example of citizens that uphold the constitution without fear. As Edmund Burke said, "The only thing necessary for the triumph of evil is for good men to do nothing".
Special thanks go to MNS Pahang Branch for collaborating with ConstiLC and ECCC, for the opportunity to reach out to more Malaysians to raise awareness of their fundamental rights.
(3) Meeting between ConstiLC and National Union of Journalists Central Working Committee 2014–2016 (13 May 2016)
A meeting between ConstiLC and the National Union of Journalists ("NUJ") Central Working Committee 2014–2016 was held on 13 May 2016 at 3:00 pm at Shah's Village Hotel, Petaling Jaya. The purpose of the meeting was to discuss issues and laws pertaining to freedom of the press and free speech.
The representatives from ConstiLC were Roger Chan Weng Keng, Chairperson of ConstiLC; Firdaus Husni, Elaine Gan Peay Er and Yvette Mah, Members of the Bar; and Anusha Gopala Krishnan, officer–in–charge of ConstiLC.
The representatives from NUJ were as follows:
(a) President: Chin Sung Chew from Sin Chew Daily;
(b) Vice–President: Mohd Taufek Razak from Utusan Melayu;
(c) Vice–President: Basir b Zahrom from Berita Harian;
(d) General Secretary: Schave Jerome De Rozario from Star Publications;
(e) Deputy General Secretary: Mohd Hidhir Basarudin from Utusan Melayu;
(f) Member: Wan Noor Hayati Wan Alias from Berita Harian; and
(g) Executive Secretary: Dr Richard Phillips from NUJ.
NUJ explained that it has eight branches with a total of 1,500 members, and that online journalists are not eligible to join. NUJ is trying very hard to include online journalists to ensure that their rights are protected too. However, the process of obtaining approval from the Ministry of Communications and Multimedia Malaysia for this inclusion is a lengthy and complex procedure. NUJ sought the Bar Council's help to bring online journalists into the fold.
NUJ also stated that section 6 of the Industrial Relations Act 1967 ("Act") is used arbitrarily by employers. Section 6 of the Act provides that:
A workman intending to carry out his duties or to exercise his rights as an officer of a trade union shall apply in writing to his employer for leave of absence stating the duration of and the purposes for which such leave is applied for and the employer shall grant the application for leave if the duration of the leave applied for is for a period that is no longer than what is reasonably required for the purposes stated in the application:Provided that a workman shall not be entitled to leave with pay for the duration of his absence if the purposes for which he is absent from work are not to represent the members of his trade union in relation to industrial matters concerning his employer.
Journalists who are also officers of NUJ are impeded from performing their duties as union officers. The common scenario is where employers grant leave but deduct the salary of the journalists. This discourages journalists from fulfilling their role as union officers. Apart from that, journalists who are promoted to manager or executive level are forced to give up their membership at NUJ. This ultimately results in oppression of freedom of the press, and the rights of journalists are compromised all the time. The media is controlled by political parties, and journalists are penalised for doing their jobs. There are instances where journalists are compelled to reveal their sources and are restricted from reporting certain cases that are affiliated with the government.
The plight of these journalists is worsened when the employers do not support them when crises arise, and they are forced to face the consequences. The failure of employers to protect the rights of the journalists leads them to violate their journalistic ethics.
Roger Chan Weng Keng stated that the Bar Council will assist NUJ in any way possible. He further stated that press freedom is crucial to ensure a vibrant democratic system, and requested that NUJ officially write in to the Bar Council on this matter, and ConstiLC will then take the matter forward.
Schave Jerome De Rozario suggested that both NUJ and ConstiLC should collaborate to raise awareness on media freedom. Firdaus Husni then provided an overview on ConstiLC's MyConsti project, and recommended that a workshop on press freedom be conducted, to educate journalists on their rights. This can be a potential area of collaboration between the two bodies.
Dr Richard Phillips suggested that ConstiLC circulate to NUJ the press statements issued by the Bar Council relating to press freedom, to enable NUJ to upload them on its website as part of a concerted effort to raise awareness.
(4) Preparatory Seminar and Workshop on Gearing Up for Redelineation (2 July 2016)
On 2 July 2016, the "Preparatory Seminar and Workshop on Gearing Up for Redelineation" was held at the Bar Council Raja Aziz Addruse Auditorium in the Straits Trading Building. Jointly organised by ConstiLC and Tindak Malaysia (an electoral NGO), this event was aimed at raising awareness of, and preparedness for, a possible redelineation of Malaysian parliamentary and state seat electoral boundaries prior to the next Malaysian General Election which must be held no later than 2018.
The event kicked off with opening remarks by Karen Cheah Yee Lynn, Secretary of the Malaysian Bar. Karen welcomed all to the event, and thanked the speakers for coming from as far as Sabah and Sarawak and other parts of Malaysia to speak. She stated that the idea behind the event was to inform people on how to ensure their voices as voters will be counted by the Elections Commission ("EC"), and denounced malapportionment (ie the creation of electoral districts with divergent ratios of voters to representatives) as offending the basic principles of democracy. Karen concluded by stating that similar workshops would be held in other states.
The first talk of the event was presented by Arina Ong Xin Yi, member of ConstiLC, who explained the legal basis for constituency redelineation with reference to Article 113 and the Thirteenth Schedule of the Federal Constitution. Arina explained that redelineation can only be conducted by the EC after eight years from the previous redelineation exercise, and spelled out the principles governing redelineation, namely that constituencies do not cross state boundaries; have regard to the availability of administrative facilities available for polling; equality of number of electors in each constituency with weightage given to rural communities; and regard to maintenance local ties. She concluded by reminding the attendees of the deadline for the filing of objections, which needed to be signed by a group of 100 or more voters.
The next speaker was Dr Wong Chin Huat, a political scientist and Fellow at the Penang Institute, who discussed the Sarawak state constituency redelineation exercise. Dr Wong reported that 33 of the Sarawak state seats were redelineated, out of which 28 were divided resulting in an increase of state seats from 71 to 82. Dr Wong further stated that the ostensible purpose of redelineation is to ensure equal and meaningful voter representation, and claimed this redelineation exercise failed to fulfil its purpose, as increasing state seats in tandem with population is unnecessary, while the redrawn boundaries failed to address the problem of malapportionment as demonstrated by the deviation figures of the state seats remaining excessive. Dr Wong blamed the issues experienced in the Sarawak redelineation on the absence or weakness of objections mounted, unfair conduct of the Public Inquiries, and exclusion of various seats from the redelineation exercise, and posited that the solution to this problem is breaking the informational monopoly exercised by the EC by demanding equivalency of information provided to the public and to Parliament, ensuring that such information as is provided is adequate, and is being prepared to challenge the EC accordingly.
In a similar vein, YB See Chee How, State Assemblyman for Batu Lintang; and Ann Teo, Chairperson of ROSE Sarawak (a Sarawakian electoral reform NGO); followed Dr Wong's talk by relating their experiences of the Sarawak redelineation exercise. YB See claimed that the EC's motive in the redelineation exercise is to ensure the victory of Barisan Nasional, and that the EC has accordingly stymied attempts to challenge their basis for redelineation by blocking or throwing out cases. He further related his attempts to bring the matter to the judicial system. YB See then raised the point that the principles of redelineation stated in the Thirteenth Schedule of the Federal Constitution are consonant with international principles on the subject. YB See concluded by stating his judgment that the EC is worried about citizen action.
Ann Teo echoed YB See's call to mount any protest at the delineation stage, and criticised the EC for providing inadequate information at the redelineation stage and treating objections as going through the motions. She further elaborated on the various procedural aspects of redelineation by relating her experiences and lessons learnt in mobilising voters to object to the EC's redelineation of Sarawak constituencies, stressing the need to double check that objectors are voters in the constituency in question, collecting signatures early, and building a good team of mobilisers and organisers.
The morning session concluded with the first question–and–answer session where participants raised various issues based on the morning's talks. Questions considered included the right to challenge the EC in the event of a failure to give reasons for their decisions, the allowability of objections on general principles as opposed to specific procedural challenges, the requirement for the EC to enjoy the confidence of the people, and awareness of the general public in respect of redelineation. Tokens of appreciation were then presented to the morning's speakers by Roger Chan Weng Keng, Chairperson of ConstiLC.
The afternoon session was conducted by Tindak Malaysia's representatives, SV Singam and PY Wong. Singam and Wong presented various tools and tips available for voters to handle redelineation exercises. Singam explained the methodology of redelineation through allocation of polling districts, and gave a demonstration of Tindak Malaysia's map tool showing how the tool can display and overlay polling district boundaries, and current and proposed constituency boundaries. Singam encouraged the dissemination and usage of the map tool as a basis to mount objections against the EC. Singam repeated the point raised in the morning session, that the best way to impact the process is at the objection stage, and gave instructions on how to register as an objector at Tindak Malaysia's website. Wong then explained Tindak Malaysia's 1RUN principle — 1Rakyat, 1Undi, 1Nilai, and explained that the first stage of the effort would be to arrange coordination at state and Parliament levels, and recruit objectors through individual and mass forms.
A breakout session was then conducted to solicit ideas and next steps, with the participants exchanging best practices and information, and agreeing to carry on contact. Singam summed up the discussion by educating the attendees on the gross malapportionment present in the Malaysian electoral system, the historical context of malapportionment, and the absurdities generated as a result. Singam concluded by stating the obvious next steps to be taken, including the recruitment of coordination teams, objector registration, training and data compilation.
The event concluded with a second question–and–answer session, with the issues raised including the creation of simplified voter delineation educational materials in a similar way to ConstiLC's Rakyat Guides booklets, the tailoring of language to cater for different constituencies, the need to leverage on political party machinery, and goal–setting for ConstiLC and Tindak Malaysia in respect of delineation.
Roger Chan Weng Keng then presented Singam and Wong with tokens of appreciation.
It is hoped that this event will be a good first step in educating the public on redelineation exercises, and ConstiLC and Tindak Malaysia are intent on following up on this event with subsequent events, including in other parts of Malaysia.
Voters are encouraged to register as objectors and obtain the map tool at Tindak Malaysia's website, www.tindakmalaysia.org.
(5) Guidelines on Redelineation of Electoral Boundaries
The EC is currently embarking on a redelineation exercise. This exercise is provided for under the Federal Constitution, as being among the powers mandated to the EC. The Federal Constitution also provides how citizens can participate in the exercise, towards making sure that it is carried out in accordance with the principles set out in the Constitution.
Yet, how many know what redelineation is, and the process involved? What are the principles that must be considered in a redelineation exercise? How can electors participate in the redelineation process? Ultimately, why must we as electors participate in the process?
ConstiLC has prepared a set of guidelines on redelineation of electoral boundaries, which aims to address the above questions and explain in a practical and easy to understand manner what the Federal Constitution provides in relation to a redelineation exercise. ConstiLC hopes that the guidelines will enable electors to play a meaningful role in the electoral process, and thus enhance the quality of democracy in Malaysia.
The guidelines are available on the Malaysian Bar website; do share this important message with other fellow citizens.
I wish to convey my gratitude to the members of ConstiLC; Members of the Malaysian Bar; the Bar Council Secretariat; the Officer, Anusha Gopala Krishnan and Administrative Assistant, Muhammad Bazli Naim b Abdul Azid; who contributed in one way or another to the committee's successful and fulfilling term.
Please visit www.perlembagaanku.com for more information on ConstiLC's activities.
Let's Rock This Nation — Together!
Roger Chan Weng Keng
Date: 13 Dec 2016
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