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Friday, February 17, 2017

On Act 355, ex-judicial luminary is neither here nor there



Anyone who has heard the distinguished former Court of Appeal judge Mohamad Ariff Md Yusof’s two disquisitions - the first last September and the other yesterday - on what has come to be known in our political parlance as Act 355 would hesitate to ascribe to Ariff’s intellect a lack of amplitude.
Razor-keen was the way he had plunged - five months ago at Gerakbudaya and at the Constitutional Law Lecture he gave at the Tun Mohamad Suffian Auditorium in Universiti Malaya yesterday - into the miasma of contention that surrounds PAS president Hadi Awang’s private member’s bill to grasp the core issue.
But legal penumbras - whether Malaysia is a secular polity and whether its constitutional guarantee of freedom of religion overrides oxymoronic aspects of its founding charter - do not much concern him.
All, on the evidence of his two disquisitions, one could obtain from him was an unctuous smile, or at best, a plea for “intelligent discourse”.
But on such concerns of Hadi’s bill being constitutional or otherwise, Ariff was sharp at separating the essential from the extraneous.
The bill was not constitutional in its May incarnation, Ariff had mused to a Parti Amanah Negara-organised panel discussion on Act 355 last September.
But in its November retrofit, Hadi's motion had shed its unconstitutional aspect, said Ariff in his lecture yesterday to an eager audience of some 300 packed into a hall dedicated to the memory of a judge who one would imagine is turning in his grave at the thought that Act 355 has come up at all.
Intricacies of the law are difficult to parse when rendered in Bahasa Malaysia.
No less than former attorney-general Abu Talib Othman warned several years ago about the possibility of a miscarriage of justice when Bahasa Malaysia is used in fleshing out legal intricacies.
The effort at parsing Hadi’s bill, in its Bahasa Malaysia rendition, and Ariff’s interpretation of how at its initial presentation last May, it was unconstitutional but was not so at its second airing in November, were strenuous exercises in legal, not to mention, linguistic exegesis.
In sum, Ariff argued, there is an override in the constitution that ought to prevent an infraction of the Penal Code from being justiciable in a Shariah jurisdiction.
In its May wording, Hadi’s bill was blasé about this; at its November retooling, the motion stays clear of potentially contentious overlap.
Hence Ariff’s opinion that Hadi’s May bill was unconstitutional; however, in November’s amended presentation, the bill does not detract from the supremacy of the Penal Code and is, thus, adherent to our constitutional framework.
A famed exegete of constitutional law once urged his students to take a Periclean rather than the plumber’s view of the subject.
By this he meant his students ought to understand the majesty of the law and its philosophical striving after justice.
‘Law was not a precise science’
He held that the law was not a precise science, but a process of reasoning in which diverse answers might all be right, depending on the perspective and social objectives which subjectively provided the greatest moral satisfaction.
If the key here is moral satisfaction, an Ariff in Periclean mode, would have been nonplussed by the emphatic demurral his opinion, expressed yesterday when taking questions from the floor, that Shariah courts were good at dispensing justice in family matters.
He had aired the same opinion at Gerakbudaya last September, to no gainsaying from his then-largely male audience.
Yesterday, holding forth before a crowd with a distinct female majority, that same opinion was received by very audible scepticism.
The political discourse in the country over the last two decades has made people aware that the constitutional clause recognising Islam as the religion of the federation has turned out to be a long term slow-motion train wreck.
The Rulers did not want the clause, the drafters of the constitution saw no need for it, and the then three main political parties - Umno, MCA and MIC - who were consulted were similarly disinclined.
Only judge Abdul Hamid of Pakistan, one of the drafters, wanted the clause included.
Reminded during the questions from the floor session about this feature of the constitution drafting process, Ariff was asked for his comments.
He had at the outset of his presentation said he was not a politician but an academician. Fair enough.
But his reactions and responses at the all-important question time resembled the dominant mode of Malay political discourse in the country, which is indirection, here aided by that anodyne locution, “intelligent discourse”.
Someone from the floor offered the pertinent view that history and culture mattered very much when it came to drafting a constitution.

The first feature is no doubt true about the draughtsmen; the second just as true about some interpreters of their handiwork.

TERENCE NETTO has been a journalist for more than four decades. A sobering discovery has been that those who protest the loudest tend to replicate the faults they revile in others. -Mkini

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