FMT news

Landmark ruling paves way to fully restore judicial power, says ex-judge
V Anbalagan

PETALING JAYA: It is now up to lawyers to seek the annulment of the amendment to Article 121(1) of the Federal Constitution, following a landmark decision by the Federal Court that the judicial power of the court resides in the Judiciary.

Retired Federal Court judge Gopal Sri Ram added that the decision had provided a platform to challenge the validity of the amendment made almost 30 years ago.

“The judgment is a beneficial ruling and credit must go to the Federal Court bench, especially the judge who wrote it,” he said.

Sri Ram, who has had the distinction of writing several landmark constitutional and administrative law judgements, said last week’s ruling was “the way forward to examine the whole of Article 121 (1) and 121 (1A)”.

He was responding to the findings of justice Zainun Ali that the amendment undermined the principle of separation of powers and independence of the Judiciary.

“With the removal of judicial power from inherent jurisdiction of the Judiciary, that institution was effectively suborned to Parliament, with the implication that Parliament became sovereign,” said Zainun who delivered the landmark ruling of a five-man Federal Court bench last week.

In her 85-page judgment she said the result was manifestly inconsistent with the supremacy of the constitution as enshrined in Article 4(1).

Others on the bench, led by Court of Appeal president Zulkelfi Ahmad Makinudin, were Hasan Lah, Abu Samah Nordin and Zaharah Ibrahim.

Sri Ram said the basic structure of the written Malaysian constitution would be violated if there was any infringement to the principle of separation of powers and independence of the Judiciary.

He said the bench had upheld that proposition in the case of Sivarasa Rasiah -v- Badan Peguam Malaysia & another (2010) and adopted the principle laid down in Keshavananda Bharti -v- State of Kerala (1973).

Sri Ram said the Federal Court’s recent ruling had departed from a majority apex court decision in the case of Kok Wah Kuan (2008) which had given a narrow interpretation to Article 121 (1) – that the superior court derived its power as conferred by Parliament.

“It is open, therefore, for any court in another case to say the effect of this Federal Court judgment is to invalidate the amendment to Article 121 (1),” he said.

Sri Ram said the effect of the judgment might include Article 121 (1A) as that provision might also not be constitutional.

The insertion of clause (1A) effectively prevented the civil courts from adjudicating any matter within the jurisdiction of the Shariah Court, which is an inferior tribunal.

The Federal Court ruling may now allow a High Court to review the decision of the Shariah Court.

“So in a conversion case, for example, any person who is dissatisfied with the decision of the Shariah Court may seek judicial review from the High Court,” he said.

Sri Ram said the amendment to remove judicial power and place it in the hands of the legislature under Article 121 (1) and introduce Article 121 (1A) was ultra vires the constitution.

The recent Federal Court judgment was the culmination of a land compensation appeal where the bench said a provision in the Land Acquisition Act which gives two assessors the right to decide on compensation is against Article 121 (1) of the constitution.

This is because Section 40D (1) & (2) of the act impinged on judicial power, as only constitutionally appointed judges could make a decision on compensation.

Maria Wirth

Article by Maria Wirth

Though I have lived in India for a long time, there are still issues here that I find hard to understand. For example, why do so many educated Indians become agitated when India is referred to as a Hindu country? The majority of Indians are Hindus. India is special because of its ancient Hindu tradition. Westerners are drawn to India because of Hinduism. Why then is there this resistance by many Indians to acknowledge the Hindu roots of their country? Why do some people even give the impression that an India which valued those roots would be dangerous? Don’t they know better?
This attitude is strange for two reasons. First, those educated Indians seem to have a problem only with “Hindu” India, but not with “Muslim” or “Christian” countries. Germany, for example, is a secular country, and only 59 percent of the population are registered with the two big Christian churches (Protestant and Catholic). Nevertheless, the country is bracketed under “Christian countries” and no one objects. Angela Merkel, the Chancellor, stressed recently the Christian roots of Germany and urged the population “to go back to Christian values.” In 2012 she postponed her trip to the G-8 summit to make a public address on Katholikentag, “Catholics Day.” Two major political parties carry Christian in their name, including Angela Merkel’s Christian Democratic Union.

Germans are not agitated that Germany is called a Christian country, though I actually would understand if they were. After all, the history of the Church is appalling. The so-called success story of Christianity depended greatly on tyranny. “Convert or die” were the options given—not only some five hundred years ago to the indigenous population in America, but also in Germany, 1,200 years ago, when the emperor Karl the Great ordered the death sentence for refusal of baptism in his newly conquered realms. This provoked his advisor Alkuin to comment: “One can force them to baptism, but how to force them to believe?”

Those times, when one’s life was in danger for dissenting with the dogmas of Christianity, are thankfully over. Today many in the West do dissent and are leaving the Church in a steady stream. They are disgusted with the less-than-holy behavior of Church officials and they also can’t believe in the dogmas, for example that “Jesus is the only way” and that God sends all those who don’t accept this to hell.

The second reason why I can’t understand the resistance to associate India with Hinduism is that Hinduism is in a different category from the Abrahamic religions. Its history, compared to Christianity and Islam, was undoubtedly the least violent as it spread in ancient times by convincing arguments and not by force. It is not a belief system that demands blind acceptance of dogmas and the suspension of one’s intelligence. On the contrary, Hinduism encourages using one’s intelligence to the hilt. It is an enquiry into truth based on a refined character and intellect. It comprises a huge body of ancient literature, not only regarding dharma and philosophy, but also regarding music, architecture, dance, science, astronomy, economics, politics, etc. If Germany or any other Western country had this kind of literary treasure, it would be so proud and highlight its greatness on every occasion. When I discovered the Upanishads, for example, I was stunned. Here was expressed in clear terms what I intuitively had felt to be true, but could not have expressed clearly. Brahman is not partial; it is the invisible, indivisible essence in everything. Everyone gets again and again a chance to discover the ultimate truth and is free to choose his way back to it. Helpful hints are given but not imposed.

In my early days in India I thought every Indian knew and valued his tradition. Slowly I realized I was wrong. The British colonial masters had been successful in not only weaning away many of the elite from their ancient tradition but even making them despise it. It helped that the British-educated class could no longer read the original Sanskrit texts and believed what the British told them. This lack of knowledge and the brainwashing by the British education may be the reason why many so-called “modern” Indians are against anything Hindu. They don’t realize the difference between Western religions that have to be believed (or at least professed) blindly, and which discourage, if not forbid, their adherents to think on their own, and the multi-layered Hindu Dharma which gives freedom and encourages using one’s intelligence.

Many of the Indian educated class do not realize that those who dream of imposing Christianity or Islam on this vast country will applaud them for denigrating Hindu Dharma, because this creates a vacuum where Western ideas can easier gain a foothold. At the same time, many Westerners, including staunch Christians, know the value of Hindu culture and surreptitiously appropriate insights from the vast Indian knowledge system, drop the original Hindu source and present it either as their own or make it look as if these insights had already been known in the West. As the West appropriates valuable and exclusive Hindu assets, what it leaves behind is deemed inferior. Unwittingly, these Indians are helping what Rajiv Malhotra of Infinity Foundation calls the digestion of Dharma civilization into Western universalism. That which is being digested, a deer for example, in this case Hindu Dharma, disappears whereas the digester (a tiger) becomes stronger.

If only missionaries denigrated Hindu Dharma, it would not be so bad, as they clearly have an agenda which discerning Indians would detect. But sadly, Indians with Hindu names assist them because they wrongly believe Hinduism is inferior to Western religions. They belittle everything Hindu instead of getting thorough knowledge. As a rule, they know little about their tradition except what the British have told them, i.e., that the major features are the caste system and idol worship. They don’t realize that India would gain, not lose, if it solidly backed its profound and all-inclusive Hindu tradition. The Dalai Lama said some time ago that, as a youth in Lhasa, he had been deeply impressed by the richness of Indian thought. “India has great potential to help the world,” he added.

When will the Westernized Indian elite realize it?

~ Maria Wirth

Executive vs Constitutional -Trump

In its response, the Department of Homeland Security said it would continue to enforce the measures that on Saturday had affected "less than 1% of the more than 325,000 international air travellers who arrive every day".

A US federal judge has blocked part of President Donald Trump's controversial executive order barring citizens from seven Muslim-majority countries from entering the US for the next 90 days.

This is nevertheless being ignored as the Judge did not rule on the constitutionality of the Presidents executive order

CNN ....

A US federal judge has blocked part of President Donald Trump's controversial executive order barring citizens from seven Muslim-majority countries from entering the US for the next 90 days.

Amid global turmoil, the judge ruled that authorities could not deport citizens of the seven countries who had already arrived in the US with valid visas, or who were in transit.

The ruling was made after the American Civil Liberties Union brought a challenge on behalf of two Iraqis detained at John F Kennedy airport in New York on Friday night, hours after Trump issued his executive order at the White House, banning entry to people from Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia.

Obama commutes Chelsea Brad Manning's sentence

CNN Jan 17,  2017

President Barack Obama on Tuesday overruled his secretary of defense to commute the sentence of former Army soldier Chelsea Manning, who was convicted of stealing and disseminating 750,000 pages of documents and videos to WikiLeaks.

The decision -- which a senior defense official told CNN was made over the objections of Secretary of Defense Ash Carter -- immediately touched off a controversy in the closing days of the Obama administration.

A former intelligence official described being "shocked" to learn of Obama's decision, adding that the "entire intelligence community is deflated by this inexplicable use of executive power." The official said the move was "deeply hypocritical given Obama's denunciation of WikiLeaks' role in the hacking of the (Democratic National Committee)."

https://www.google.com/amp/s/amp.cnn.com/cnn/2017/01/17/politics/chelsea-manning-sentence-commuted/index.html

Brexit

You must go back to Parliament for these changes.  The referendum is of great importance but the treaty is silent to this. To circumvent the Parliament, even with Article 50, would breach constitutional laws.

Brexit Exit

http://www.bbc.com/news/live/uk-politics-38723261