This is probably my third article on the topic on \”morality and public spaces in Malaysia.\”

It relates to the same rhetorical question: should all Malaysians have to breathe green air?\”

For a fact, when the SUHAKAM had their 9th Malaysia Plan Consultation in 2005, I tabled a paper on this issue of \”moral dimensions of public spaces of life in Malaysia.\”

\"\"

I reflected on my concern of which values and whose responsibility should define, affirm and ensure the colour of the air that we all have to breathe within the Federation of Malaysia?

If PAS\’ Hassan Ali has his way, he will follow Tok Guru, Nik Aziz of Kelantan and paint Selangor completely green, including giving enforcement powers to \”office bearers in Mosques\” and the authority to \”enforce morality in Selangor.\”

Even the Sultan was not consulted on this.

That is apart from banning the sale of beer in Selangor, forgetting that we really have no border patrols.

Moreover, can any of his Mosque officials actually even stop me and ask for my identity card?

Not by current laws of the Federation.

Only gazetted police officers have such authority and not even security guards in most public places, other than \”specifically gazetted ones like the Ministry of Defence or the PM\’s Department in Putrajaya.\”

Therefore, we all have to learn to distinguish between civil and criminal laws in the Federation we call Malaysia.

Syariah law is still only personal and family Islamic law enacted by only the Malay States and it is not public space laws for all of the Federation.

Rule of law must prevail

Next, if the Pahang Syariah Court had its way, they would also paint the whole Federation green without understanding our Rule of Law (Civil and Criminal) under our Constitution.

They do not seem to know that the Constitution is the supreme law of this nation.

\"\"

They instructed the Federal prison department to \”punish a Syariah Offender by whipping\” when the prison\’s own ordinances bar the whipping of ladies and minors.

They even had the audacity to almost send the \”victim\” to Kajang Prison Authorities in Selangor for the \”enforcement of ‘their\’ punishment,\” on hindsight and retroactive judgment.

Under what provision did they do this, please?

Is not Pahang Syariah law only valid in Pahang? Can somebody, please alert and educate me what is the legal basis for such an action by Federal Public Authorities?

I believe these actions and non-actions should be reviewed by the AG \” for Constitutional Integrity.\”

But, maybe the AG\’s office fell asleep like the MACC officer, while on duty!

Even more interesting, the Ministry of Home Affairs has banned one of the Sisters in Islam book entitled \”Muslim Women and the Challenges of Islamic Extremism\” because it was \”prejudicial for public order.\”

The Sisters\’ forum (Malaysia) challenged this order and requested a judicial review of the same.

Fortunately for our nation, one very smart, intellectual and wise newly appointed Judicial Commissioner allowed the review \”because it impinged on other rights and privileges already provided in the Federal Constitution.\”

Mohammed Ariff Md Yusof said, \”The issues raised were important as they related to freedom of speech, equality, and freedom of religion, state jurisdiction and the international obligations of Malaysia.\”

This was not a green air issue but rather related to thick black air, like the ‘Black Thursday of 1Malaysia\’ being promoted by an NGO.

It is black air because these \”fear mongers in the Ministry of Home Affairs see a black communist or red one behind every \”dangerous book\” as if they are still the \”thoughts of Mao Tze Tung\” and will in fact disrupt public order in Malaysia.

Closed system of thoughts?

Which century were these officials born anyway? Communism is dead, socialism is dead, and even greedy capitalism is dying.

Even the 10th Regiment members of the CPM are dying in Thailand.

But, our Ministry of Home Affairs remains a closed system of thought which are ends in themselves!

\"\"

Many Malaysians feel the suffocating presence of foul ordour in the air, whether it is green, grey, white or even the colours of the rainbow.

What we need is clean air without any ordour or colour or smell.

Equally many have begun to speak up on this issue. In Shah Alam today it is \”cow-head\” clouded foul air.

While many famous ones are concerned that this might demonstrate the non-compassionate side of Islam and destroy our image as a moderate Muslim country, it was TDM (Dr Mahathir) who was careless enough when he played politics with religion and declared Malaysia to be an Islamic State.

Since then the Islamists have tried to paint the colour of our air green.

Malaysia was and always is a secular state under our current Constitution and this was clearly stated and recorded in our legal annals by none other than the late Tun Mohamad Suffian Hashim.

Sadly, nobody may listen to TDM anymore, unless he admits he was wrong and I do not blame them because he has cried wolf too many times.

He has now lost his opportunity to set the nation on the right course on this subject.

I was however even more intrigued by the comments of some members of the legal fraternity.

Datuk Ismail Yahya, Chief Syariah Judge and Professor Shad Saleem Farouqi both believe that the action to \”cane Kartika is illegal when she has not been imprisoned.\”

In concurrence with this line of thinking also, the Minister of Home Affairs argued that \”his officers lack the expertise.\”

He is a lawyer and must know the full consequences of the action, if ever carried out by his Federal Department.

Retired Judge MA Aziz expressed his concern that \”this is an illegal sentence.\”

Federal law prohibits caning of women

According to him, and based on the Federal Constitution (Item1, List II), \”syariah courts shall not have jurisdiction in respect of offences except in so far as conferred by Federal Law.\”

He concludes, \”That means that \”syariah courts derive criminal jurisdiction from Federal Law – the Muslim Court (Criminal Jurisdiction) Act 1965.

\”Without the authority of that act, it would not be possible to have syariah courts impose the sentence of canning.\”

The fact is current Federal Law prohibits whipping for women, unless expressedly provided by the sentencing criminal (civil) judgment.

The best and most educational write-up is at http://art- harun.blogspot.com/2009/08/legality-of-caning-kartika.html

Art Harun does an excellent job of informing and raising the consciousness of the uninitiated about the due processes of Islamic Syariah jurisprudence and our Federal law system.

But, where does all this leave the Malaysian citizenry?

I suspect 90 percent of Malaysians may say that drinking beer is not good, but most might also not make want to make it a punishable offence.

The majority would probably agree that habitual drinking can probably be discouraged.

None, except for the literal interpreters of the Islamic jurisprudence, would argue that there should even be canning for beer drinking.

In fact, according Art Harun clarifies that the Pakistani Federal Syariah Court has ruled \”that there is no clear prohibition against consumption of alcohol in the Quran and that flogging for such offence is thus unIslamic.\”

Need more be said or argued because the Pakistani Syariah System is a federal one and Pakistan is an Islamic State, unlike ours, which is a secular one and the syariah enactments are only State Enactments and not federal ones!

Can I therefore conclude that Malaysians are slowly but surely getting air which most of us cannot breathe comfortably in.

In fact, some are suffocating with indignity of the personal faith and choice of practices which are no more an individual option but rather being driven by compulsion of the state, which, to me, denies the very concept of a personal faith.

May God grant the Malaysian government the dignity and wisdom to steer us through this controversy.