Status Anak Anut Agama Asal

NGO Islam minta Kabinet kaji semula status anak anut agama asal

 Oleh Nurul Ain Mohd. Hussain

Jumaat April 24, 2009

 KUALA LUMPUR: Kira-kira 100 pertubuhan bukan kerajaan (NGO) Islam hari ini membantah dan meminta Kabinet mengkaji semula keputusan jemaah menteri berhubung status anak-anak kekal menganut agama asal meskipun salah seorang ibu atau bapa memeluk agama lain.

Mereka mendakwa keputusan itu dibuat tanpa mengambil kira undang-undang sedia ada dan pandangan pihak-pihak yang berkenaan. [ lihat ini]

Antara NGO Islam yang hadir ialah, Persatuan Peguam Syarie Malaysia (PGSM), Alliance Coordinating Committee of Islam (Accin), Angkatan Belia Islam Malaysia (ABIM), Ikatan Muslimin Malaysia (ISMA), Muafakat dan Khalifah Institute, Malaysian Chinese Muslim Association (Macma).

“Kami menegaskan apa-apa cadangan perubahan yang berkaitan mesti mengambilkira undang-undang yang sedia ada dan pandangan semua pihak yang berkenaan.

“Proses ini harus melibatkan perbincangan yang menyeluruh dan lengkap serta tidak terlalu reaktif kepada tekanan mana-mana pihak,”kata Pengerusi Presiden Persatuan Peguam Syarie Malaysia (PGSM) Mohamad Isa Ralip dalam satu kenyataan bersama pertubuhan-pertubuhan bukan Islam yang dibacakan di Sekteriat PGSM di sini hari ini.

Semalam, Kabinet membuat keputusan bahawa anak-anak kekal menganut agama asal ibu bapa masing-masing semasa berkahwin, walaupun ibu atau bapa mereka kemudiannya memeluk agama lain.

Menteri Di Jabatan Perdana Menteri Datuk Seri Mohamed Nazri Abdul Aziz berkata keputusan itu adalah antara penyelesaian jangka panjang yang dicapai oleh Kabinet semalam memandangkan lebih banyak kes seperti yang melibatkan Mohd Ridzuan Abdullah dan isterinya Indra Gandhi, dijangka muncul pada masa akan datang.

Mohd Ridzuan, atau Patmanathan a/l Krishnan, 40, bekas penganut Hindu, yang kini memeluk Islam, dilaporkan telah menukar agama anaknya Tevi Darsiny, 12, Karan Dinesh, 11, dan Prasana Diksa, 1 kepada Islam pada 12 April serta memohon hak penjagaan terhadap mereka di Mahkamah Syariah walaupun emak mereka masih beragama Hindu.

Menurut Mohamad Isa, isu tersebut perlu ditangani dengan segera kerana ia dibimbangi tidak berlaku adil kepada semua pihak yang terlibat.

“Mengambil kira sensitiviti yang tinggi dengan kes-kes seupama ini. Kami menyeru semua pihak menangani isu ini secara bersama dan saksama.

“Kami pertubuhan-pertubuhan Islam sekali lagi menyatakan kesediaan untuk terlibat dalam proses ini,”katanya.

Jelasnya, walaupun tiada peruntukan dalam Undang-undang Syariah berkaitan isu tersebut namun mengikut kaedah fiqyah (hubungan nasab), agama perlu dipertahankan.

“Apabila seseorang itu telah memeluk Islam maka agama yang baru dianuti oleh seseorang itu perlu dipertahankan. Ini secara tidak langsung menunjukkan Islam mahu berlaku adil kepada semua,”katanya.

Menurut Presiden Angkatan Belia Islam Malaysia (ABIM), Yusri Mohamad berkata, keputusan Kabinet semalam seolah-olah ia telah diiktiraf sebagai undang-undang sedangkan ia belum diwartakan sebagai undang-undang.

“Kabinet harus mengambilkira pandangan semua pihak dalam aspek-aspek yang melibatkan hukum syarak. Mereka (Kabinet) sepatutnya mendapatkan pandangan daripada Mufti,pakar-pakar perundangan Islam dan pandangan Sultan perlu diambilkira terlebih dahulu.

“Kami bimbang ia akan dimanipulasi oleh pihak-pihak lain. Dalam perlembagaan sendiri ada menyatakan berhubung isu agama, bahawa agama anak itu ditentukan oleh ibu atau bapa,”katanya.

Sementara itu, Timbalan Presiden Persatuan Peguam Pembela Islam (PPI), Zainul Rijal Abu Bakar berkata keputusan jemaah menteri telah melangkaui keputusan yang telah diputuskan oleh Mahkamah Persekutuan.

“Perkara ini telah disebut dalam perkara 12.4 Perlembagaan Persekutuan yang menetapkan bahawa salah seorang ibu atau bapa yang memeluk Islam boleh menentukan agama anaknya.

“Keputusan Kabinet juga boleh dilihat subjudis terhadap kes yang masih belum diputuskan oleh mahkamah,”katanya.

Timbalan Pengerusi Persatuan Peguam Muslim, Mohamad Burok pula menyifatkan keputusan Kabinet semalam telah mengelirukan rakyat sedangkan Kabinet tidak mempunyai kuasa melaksanakan undang-undang.

“Kenyataan Kabinet semalam memperlihatkan seolah-seolah mereka mempunyai kuasa undang-undang.

“Ia tidak ubah apa-apa kecuali jika ada undang-undang dipinda di Parlimen barulah ia diterima. Jadi ini menggemparkan rakyat. Keputusan Kabinet semalam juga bercanggah dengan undang-undang syariah,”katanya.

Menurut Setiausaha Accin, Sabariah Abdullah, keputusan Kabinet semalam telah membuatkan orang Islam menjadi cemas kerana kenyataan tersebut belum digazetkan sebagai undang-undang.

“Kita memohon supaya setiap masalah agama dan kaum dianalisis dengan betul dan dirujuk sebelum apa-apa kenyataan dibuat. Kita harap perkara agama tidak diekploitasi oleh mana-mana pihak,”katanya.

Presiden Dakwah dan Kebajikan Saudara Baru India SeMalaysia (Al-Hidayah) Abdul Latif Sathrean Abdullah berkata kerajaan perlu menangani masalah tersebut segera.

Beliau juga tidak menolak kemungkinan pihaknya bersama NGO lain akan menghantar kerajaan memorandum untuk membantah keputusan tersebut jika kerajaan tidak langkah segera untuk menangani masalah tersebut.

©mStar Online

Penasihat Umno Jawab Isu MB Perak

Datuk Hafarizam Harun.

Penasihat Undang-undang Umno.

 

Apr 22, 2009

 

Keputusan Mahkamah Persekutuan bahawa penggantungan Menteri Besar BN Perak, Datuk Seri Dr Zambry Abdul Kadir dan enam exco kerajaan negeri itu oleh Speaker DUN Perak, V Sivakumar batal dan tidak sah, adalah konklusif dan tidak boleh dipertikaikan, kata Datuk Hafarizam Harun.

 

 Berikut adalah kenyataan penuh beliau yang disiarkan dalam Umno Online:

 

A. Pengenalan

 

Sejak daripada tarikh keputusan Mahkamah Persekutuan pada 16 April 2009, banyak telah diperkatakan di dalam blog dan laman web tentang kesan atau impak terhadap keputusan Mahkamah Persekutuan di dalam Notis Usul 06-04-2009 (A) antara YAB Dato Seri Dr. Zambry bin Abd. Kadir dan enam Exco lawan YB Sivakumar a/l Varatharaju Naidu (dituntut selaku Yang DiPertua, Dewan Negeri Perak) yang terbaru adalah di dalam laman http://www.harakahdaily.net/ oleh Saudara Hanipa Maidin, Pengerusi Lujnah Undang-undang dan Hak Asasi Manusia PAS Pusat pada April 20, 2009.

 

Justeru itu, saya selaku Ketua Pasukan Undang-undang yang bertanggungjawab di dalam kes di atas merasakan perlu saya berikan penjelasan sebaliknya dan menyerahkan kepada pembaca sekalian untuk membuat kesimpulan sewajarnya.

 

B. Latar Belakang Kes Mahkamah Tinggi Ipoh Saman Pemula No: 24-247-2009

 

Tindakan Saman Pemula ini telah difailkan pada 2hb Mac 2009 (tindakan pertama). Antara deklarasi yang dipohon adalah seperti yang tertera di dalam LAMPIRAN 1.

 

C. Kes Mahkamah Persekutuan Notis Usul No. 06-04-2009(A) di Putrajaya

 

Terdapat 11 permohonan yang dipohon oleh YAB Menteri Besar Perak dan enam Exconya. Bagi mendapat kata putus kepada tindakan di atas, kami telah failkan suatu permohonan di bawah Artikel 63 Perlembagaan Negeri Perak yang bermaksud seperti di bawah:

 

“Without prejudice to any appelate or revisional jurisdiction of Federal Court, where in any proceedings before another Court, a question arises as to the effect of any Article in the Laws of tahe Constitution or any part thereof, the Federal Court may, on the application of either party to the proceedings, determine that question and either dispose of the case or remit it to the other Court to be disposed of in accordance with the determination.”

 

Ianya telah didengar oleh Mahkamah Persekutuan daripada 13hb hingga 14hb April dan keputusan diberikan pada 16hb April. Berikut adalah (LAMPIRAN 2) persoalan undang-undang yang telah dijawab secara positif oleh Mahkamah Persekutuan, iaitu soalan (i) dan (ii) Lampiran A kepada LAMPIRAN 2 di sini.

 

Pada hari yang sama juga, (16 April 2009) Mahkamah Persekutuan telah membuat perintah-perintah berikut terhadap tindakan pertama kami iaitu memberikan perisytiharan bahawa;

 

a. Keputusan Defendan Pertama (YB Sivakumar) menggantung dan melarang Plaintif Pertama hadir pada sidang Dewan Negeri selama 18 bulan adalah menyalahi Undang-undang Tubuh Negeri Perak Darul Ridzuan dan oleh itu adalah terbatal dan tidak sah; dan

 

b. Keputusan Defendan Pertama (YB Sivakumar) menggantung dan melarang Plaintif ke-2 sehingga ke-7 menghadiri sidang Dewan Negeri selama 12 bulan adalah menyalahi Undang-undang Tubuh Negeri Perak Darul Ridzuan dan oleh itu adalah terbatal dan tidak sah.

 

Berdasarkan kepada perintah-perintah peristiharan di atas, saya menyatakan bahawa YAB MB Perak dan enam Exconya layak hadir ke sidang Dewan Negeri Perak yang dijadualkan berlangsung pada 7hb Mei 2009 atas alasan-alasan berikut:

 

i. Perintah-perintah yang diperolehi adalah muktamad dan tiada lagi ruang untuk merayu.

 

ii. Jikalaupun tidak mendapat keseluruhan permohonan di dalam tindakan pertama, sila lihat Lampiran A kepada LAMPIRAN 2, yang pentingnya di sini ialah persoalan kesahihan penggantungan terhadap YAB MB Perak dan enam Exconya telah dijawab secara positif oleh Mahkamah Tinggi di Malaysia ia tidak sah dan terbatal;

 

iii. Dalam ertikata lain, lain-lain permohonan (prayers) di dalam tindakan pertama hanyalah bersifat bersampingan (consequential). Yang pentingnya, seperti saya tegaskan tadi, adalah apa yang telah diberikan oleh Mahkamah Persekutuan.

 

Berkenaan pendapat Saudara Hanipa bahawa Peguam UMNO telah salah memilih prosedur, iaitu perlu melalui semakan kehakiman di bawah Aturan 53 Kaedah-kaedah Mahkamah Tinggi 1980 dan bukannya Saman Pemula, ini telah diputuskan oleh Mahkamah Persekutuan di dalam bantahan awal peguam YB Sivakumar bahawa tindakan pertama (iaitu melalui Saman Pemula) adalah betul dan wajar. Tambahan lagi, apa yang dipohon adalah deklarasi hak-hak (declaration of rights) oleh YAB MB Perak dan enam Exconya.

 

Isu keputusan YB Sivakumar selaku Yang DiPertua patut dipadam oleh Mahkamah (quasued by the court) tidak timbul (non-issue) kerana ianya dibuat secara berseorangan (unilateral) dan bukannya di dalam sidang sah Dewan Negeri Perak. Sila lihat LAMPIRAN 3 iaitu kenyataan akhbar YB Sivakumar. Jelas perkataan yang dibuat adalah “Saya telah membuat keputusan….”

 

Begitu juga surat-surat pemberitahuan di dalam LAMPIRAN 4, semuanya jelas menggunakan perkataan “…kuasa saya….” Ini pada hemat saya penggunaan kuasa secara berlebihan (excess use of powers) oleh YB Sivakumar dan tidak mengikuti lunas undang-undang.

 

D. Apakah yang dikatakan suatu penghinaan (contempt) yang kononnya dilakukan oleh YAB MB Perak dan Enam Exconya sehingga ianya digantung oleh YB Sivakumar?

 

Jikalau dilihat Saman untuk hadir ke Mesyuarat Jawatankuasa Kebebasan (Rights and Privileges Committee) yang dikeluarkan oleh YB Sivakumar, selaku Yang DiPertua Dewan Negeri Perak, iaitu LAMPIRAN 5 (untuk YAB MB Perak) dan LAMPIRAN 6 (untuk Enam Exconya), ianya dikatakan suatu penghinaan (contempt) kerana:

 

(a) Untuk YAB MB Perak (LAMPIRAN 5)

 

“(i) Bahawa bertentangan dengan peruntukan Undang-undang Tubuh Negeri Perak kamu telah dan masih secara salah menjawat diri kamu sebagai Menteri Besar;

 

(ii) Bahawa kamu telah menyalahi undang-undang dengan membentukkan suatu Majlis EXCO walaupun wujudnya sebuah EXCO yang dilantik secara sah, yang mana ahli-ahlinya tiada meletakkan jawatan ataupun dihentikan perlantikan mereka di bawah Undang-undang Tubuh Perak;

 

(iii) Bahawa kamu dan yang lain telah secara salah menduduki dan mengambil milikan pejabat Setiausaha Kerajaan Negeri dan oleh itu adalah penceroboh;

 

(iv) Bahawa tindakan kamu membentuk suatu penghinaan Dewan Negeri kita yang mulia dan menghalang perjalanan lancar dan fungsinya;

 

(v) Bahawa tindakan menghina oleh kamu telah memalukan YB Menteri Besar, Dato’ Seri Mohammad Nizar Jamaluddin dan ahli-ahli Majlis EXCO dan membendung mereka daripada menjalankan dan melaksanakan tugas-tugas mereka;

 

(vi) Bahawa tindakan yang menghina oleh kamu adalah kelakuan tak senonoh sebagai seorang ahli Dewan Negeri kita yang mulia ini adalah bertentangan Perintah-Perintah Tetap, Undang-Undang Tubuh Perak dan Rukun Negara, khasnya, Rukun No. 5 Kesopanan Dan Kesusilaan;

 

(vii) Bahawa tindakan tak senonoh kamu telah mencemar nama baik Dewan Undangan kita yang mulia ini dan membawa kehinaan, cemuhan, kebencian dan keaiban kepada Dewan;

 

(viii) Bahawa tindakan tak senonoh kamu bermaksud suatu kelakuan rasuah, derhaka, pengaruh tak wajar, biadap dan pemerintahan buruk.”

 

(b) Untuk Enam Exco Perak (LAMPIRAN 6)

 

“(i) Bahawa bertentangan dengan peruntukan Undang-Undang Tubuh Negeri Perak kamu telah dan masih secara salah menjawat sebagai ahli EXCO;

 

(ii) Bahawa kamu telah menyalahi undang-undang dengan membentukkan suatu Majlis EXCO walaupun wujudnya sebuah EXCO yang dilantik secara sah, yang mana ahli-ahlinya tiada meletakkan jawatan ataupun dihentikan perlantikan mereka di bawah Undang-Undang Tubuh Perak;

 

(iii) Bahawa kamu dan yang lain telah secara salah menduduki dan mengambil milikan pejabat Setiausaha Kerajaan Negeri dan oleh itu adalah penceroboh;

 

(iv) Bahawa tindakan di atas membentuk suatu penghinaan Dewan Negeri kita yang mulia dan menghalang perjalanan lancar dan fungsinya;

 

(v) Bahawa tindakan menghina oleh kamu telah memalukan YAB Menteri Besar, Dato’ Seri Mohammad Nizar Jamaluddin dan ahli-ahli Majlis EXCO dan membendung mereka daripada menjalankan dan melaksanakan tugas-tugas mereka;

 

(vi) Bahawa tindakan yang menghina oleh kamu adalah kelakuan tak senonoh sebagai ahli Dewan Negeri kita yang mulia ini dan adalah bertentangan Perintah-Perintah Tetap, Undang-Undang Tubuh Perak dan Rukun Negara, khasnya, Rukun No. 5 Kesopanan Dan Kesusilaan;

 

(vii) Bahawa tindakan tak senonoh kamu telah mencemar nama baik Dewan Undangan kita yang mulia ini dan membawa kehinaan, cemuhan, kebencian dan keaiban kepada Dewan.”

 

Persoalan pokok di sini ialah bukankah DYMM Paduka Seri Sultan telah perkenan mengadap dan mengangkat sumpah jawatan YAB MB Perak pada 6hb Februari 2009 manakala enam Exco pada 10hb Februari 2009. Jika menerima perlantikan jawatan YAB MB Perak dan Exco adalah suatu penghinaan (contempt) kepada Dewan Negeri, tidak menerimanya pula adalah suatu penderhakaan (traitor) terhadap kuasa mutlak DYMM Paduka Seri Sultan Perak.

 

Kesimpulan saya daripada di atas adalah berikut:

 

(i) Oleh kerana pihak pembangkang mengakui prinsip ketidakbolehan cabaran (non-justiciability) kuasa DYMM Paduka Seri Sultan melantik Menteri Besar dan barisan Exconya, YAB MB Perak dan Enam Exconya telah dijadikan mangsa serangan (obvious target);

 

(ii) Ianya adalah serangan secara pintu belakang (back door challenge) disebabkan prinsip ketidakbolehan cabaran (non-justiciability); dan

 

(iii) Suatu lagi contoh penggunaan kuasa secara keterlaluan oleh YB Sivakumar selaku Yang Dipertua Dewan Negeri Perak tanpa mengambil kira prinsip pecahan kuasa iaitu DYMM Paduka Seri Sultan Perak selaku Ketua Negeri dan di bawahnya adalah Badan Legislatif dan Eksekutif.

 

E. “Mesyuarat bawah pokok” – tidak sah

 

Adalah mengelirukan pada hemat saya, apabila Saudara Hanipa mengatakan bahawa penggantungan YAB MB dan Enam Exconya telah diterima (endorsed) di sidang bawah pokok kerana alasan-alasan berikut:

 

(i) Perintah Tetap 10, Perintah-perintah Tetap Dewan Perhimpunan Undangan Negeri Perak Darul Ridzuan (LAMPIRAN 7) jelas mewajibkan perisytiharan DYMM Paduka Seri Sultan di dalam warta;

 

(ii) Mesyuarat bawah pokok pada 3hb Mac 2009 tidak mendapat perkenan, tiada perisytiharan DYMM Paduka Seri Sultan dan diwartakan; dan

 

(iii) Ketiga-tiga mesyuarat di dalam Penggal yang terdahulu, yang terakhir berakhir pada 13hb November 2008, mempunyai perisytiharan DYMM Paduka Seri Sultan dan diwartakan. Ianya telah diikuti secara ketat oleh YB Dato’ Seri Ir Mohd Nizar Ahmad Jamaludin sewaktu beliau menjadi Menteri Besar Perak.

 

F. Kesimpulan

 

Adalah hujahan saya bahawa perintah Mahkamah Persekutuan yang diperolehi pada 16hb April 2009 adalah konklusif dan tidak boleh dipertikaikan. Ianya juga bukan akademik semata-mata tetapi menjawab persoalan kepada tindakan pertama dan lain-lain yang berkaitan dengannya.

  

©Umno Online

Making it to the Nation’s Top Post

Reflecting On the Law

 

Shad Saleem Faruqi

Wednesday April 8, 2009

 

 

DESPITE swirling rumours that there were some hitches in the appointment of the new Prime Minister, Malaysia continued its proud tradition of a peaceful and orderly succession to the nation’s top political post.

 

Of the five previous prime ministers, four (Tunku Abdul Rahman, Tun Hussein Onn, Tun Dr Mahathir Mohamad and Tun Abdullah Ahmad Badawi) stepped down voluntarily and gracefully. Tun Razak died in office at the peak of his popularity.

 

Appointment: In the US and France, the President is chosen by the entire electorate at a nationwide poll.

 

The Prime Minister in a Westminster-style democracy like ours is appointed, not elected. Before his appointment as the CEO of the nation he is an ordinary MP elected by the voters of a single parliamentary constituency.

 

The power to appoint him is vested in the Yang di-Pertuan Agong with two guidelines provided in Article 43(2)(a).

 

First, the appointee must be a member of the Dewan Rakyat. Second, in the judgment of the King, the PM designate must be “likely to command the confidence of the majority of the members of that House”.

 

Despite the simplicity of the language, the permutations of politics are many.

 

Discretion of the King: Article 40(2)(a) provides that the Yang di-Pertuan Agong may act in his discretion in the performance of a number of functions including the appointment of a PM. This means that the King is not bound by the advice or wishes of an outgoing PM.

 

When a vacancy in the office of the Prime Minister arises due to death, resignation or a vote of no-confidence, the question as to who satisfies the twin requirements of Article 43(2)(a) is mostly a political, and not a legal, question.

 

In some circumstances, the Yang di-Pertuan Agong’s discretion may tilt the balance in favour of a candidate.

 

Membership of Dewan Rakyat: Despite the explicit language of Article 43(2) that the Prime Minister must belong to the Dewan Rakyat, it is possible to envisage situations in which a Senator or a person from outside Parliament may be anointed.

 

One must remember that the law of the Constitution is often supplemented by customs, usage, understandings and practices that “provide the flesh to clothe the dry bones of the law”.

 

In the UK in 1963, after the resignation of Prime Minister Harold Macmillan for reasons of ill-health, Lord Home, a member of the House of Lords was appointed by the Queen to grace the office of Prime Minister.

 

Lord Home resigned his place in the upper House. A by-election was engineered for his sake. He won a seat in the House of Commons. This satisfied the constitutional rule that the PM must belong to the elected, lower House.

 

In Selangor a few years ago, a similar precedent occurred. Upon the unplanned resignation of then MB Tan Sri Muhammad Muhammad Taib, a federal Minister, Datuk Abu Hassan, was nominated for the task. He won a seat in a by-election, thereby satisfying the constitutional requirement of membership of the State Assembly.

 

The person: Aside from requiring that the Prime Minister must belong to the Lower House and must be likely to command the confidence of that House, the Constitution does not specify any other pre-requisites.

 

There is no upper age limit, though the PM must qualify as an MP and be at least 21. In Australia Chris Watson became PM in 1904 at age 37.

 

There is no legal requirement that after the death or resignation of a prime minister, his deputy must automatically ascend to his post.

 

Whether the mantle of leadership of the party and of the Government will devolve on a DPM depends on politics. His elevation rests largely on his party or coalition rallying behind him to convince the King that under Article 43(2) the Deputy now commands the confidence of the Lower House.

 

Ethnicity, gender or region are not legally relevant. But citizens by naturalisation are not eligible.

 

It is within the realm of legal possibility that in some distant future a non-Malay or a woman or a Sabahan/Sarawakian will inherit the mantle of leadership. Whether political realities will ever throw up such a possibility is, however, a separate issue.

 

The party: There is no law that the PM must belong to a particular party or that he must belong to any party whatsoever! Nor is it necessary for him to be the leader of the majority party in Parliament.

 

In India it is common for the party-presidency and the prime ministership to be held by two different persons.

 

Confidence of the majority: If there is a majority party or coalition in the Dewan Rakyat and if the party or coalition is united behind a chosen successor (as has been the case after all 12 federal elections), then the Yang di-Pertuan Agong’s role in appointing a new Prime Minister is merely symbolic and nominal.

 

Barring extraordinary circumstances, the King is expected to follow the wishes of the majority party.

 

But if the vacancy arose due to defeat on a vote of no-confidence or due to internal dissensions within the ruling party or coalition or if there is a “hung Parliament” – i.e. no political group is commanding a clear majority in the Lower House – then the Yang di-Pertuan Agong’s discretion acquires great significance.

 

Unlike in Nepal, where the leader of the largest party must be given the first bite of the cherry, Malaysia has no such rule.

 

The Constitution does not require that the PM must have an actual physical majority in the Dewan Rakyat. It is sufficient, if he has “the confidence of the majority”.

 

The PM can be a non-party man (Tun Mahathir was for a while when his party was de-registered).

 

The PM can belong to a minority party and may be a compromise, short-term candidate to whom the majority has promised support.

 

If a prime minister resigns from his party or is expelled from the party or his party is de-registered, he can still continue in his post provided that he has the backing of the majority of the MPs in the Lower House.

 

In the early 70s, Prime Minister Indira Gandhi of the Congress Party of India was expelled from her party by the party elders. In the 80s Malaysian Prime Minister Dr Mahathir’s Umno party was declared by the High Court to be an unlawful society under the Societies Act.

 

In both cases, the premiers continued in office due to the confidence of the majority of the members of the Lower House. The fact that they had no political party to stand behind them is constitutionally irrelevant.

 

A similar discretion would exist in other unusual or extreme cases e.g. if the ruling party or coalition is deadlocked on the choice of a leader, or if the entire political leadership is wiped out in a terrorist attack or if during a dissolution of the Dewan Rakyat the caretaker Prime Minister dies or resigns before election results throw up a new leadership.

 

The Article 43(2) guidelines – membership of the Dewan Rakyat and confidence of the House – will be difficult to apply in such unusual situations. A judicious exercise of discretion and a careful regard for political impartiality would guide His Majesty.

 

DPM: The post of the Deputy Prime Minister is nowhere mentioned in the Constitution and can be regarded as an honorary position in the Cabinet conferred at the discretion of the PM as a matter of constitutional convention. In India the PM has often appointed more than one deputy.

 

Cabinet posts: Under Article 43(2) Cabinet ministers are appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. The PM’s power to choose his own team is not fettered by any law and is only subject to the exigencies of coalition and federal politics. The PM can name someone as a Senior Minister.

 

Under Article 43(5) the appointment of any minister can be revoked by the King on the advice of the PM.

 

What is the constitutional position of ministers once the Prime Minister submits his resignation?

 

The law is silent on the point. But conventions from the UK indicate that if the coalition in office still retains its majority in the lower House, the Government as a whole need not vacate office.

 

Individual ministers appointed by the previous PM need not resign. But they must place their position at the successor’s disposal.

 

The successor may decide to make a few changes. Those whose services are not needed must resign or face dismissal.

 

Ministers who are retained need not be re-appointed formally. This is what happened in October 2003 on the resignation of Tun Dr Mahathir Mohamad.

_________________________________________________________________________________________________________________________

Dr Shad Saleem Faruqi is Professor of Law at UiTM.

 

 

©Star

Fed Court to Interpret Perak Ruler’s Powers to Appoint MB

By : V. Anbalagan

 

 

PUTRAJAYA

Wed: 2009/04/22

 

The two month old Perak constitutional crisis could be over sooner than expected. Datuk Seri Dr Zambry Abdul Kadir has filed an application in the Federal Court for an interpretation of the Sultan’s prerogative power under the Perak Constitution to appoint a menteri besar. The Federal Court has fixed the matter for hearing on Tuesday.

 

 

Zambry’s application, made under Article 63 of the State Constitution, was filed by his solicitors Zul Rafique and Partners at the Federal Court registry on Monday.

 

This express route is taken following the apex court’s landmark ruling on April 8 that it can decide the status of three independent assemblymen who are friendly to the Barisan Nasional.

 

Article 63 states that a party to a proceeding in a High Court can go direct to the Federal Court if there was a serious question of law to be determined.

 

[On April 9, a five-man bench unanimously declared that the three independents were still assemblymen and the Election Commission was the rightful entity to establish a casual vacancy and not the state legislative assembly Speaker.]

 

In his application, Zambry wants the Federal Court to clarify the position of Article 16 (2) and Article 16 (6) of the Perak Constitution.

 

He posed three questions:

 

• whether the ruler had the right to refuse consent to the dissolution of the assembly by ousted menteri besar Datuk Seri Mohd Nizar Jamaluddin when he had lost the confidence of the majority assemblymen;

 

• whether upon refusal by the ruler to dissolve the assembly, should Nizar and his executive councillors tender their resignations; and

 

• Whether the ruler can appoint Zambry as menteri besar after due inquiry that Nizar had lost the confidence of the majority assemblymen although a vote of no confidence was not taken in the assembly.

 

If the above questions are in the affirmative, Zambry wants the court to declare that his appointment as Menteri Besar on Feb 6 was in accordance with Article 16 (2) of the Perak Constitution.

 

Zambry said his grounds for the application was premised on the basis that the apex court could now decide on the appointment and removal of menteri besar as it was allowed under the Perak Constitution.

 

He said the questions of general principles posed would be decided for the first time, and it was of public importance as it involved the major concerns of the people of Perak.

 

Nizar claimed that he was still the legitimate menteri besar on grounds that there was no dissolution of the state legislative assembly, no motion confidence was taken in the house against him and he did not resign.

 

He also issued a write of quo warranto asking Zambry to show cause by what authority he was occupying the post.

 

 

©NST

Perak crisis: Zambry versus Sivakumar

By Justice (rtd) NH Chan*

 

April 18, 2009

http://www.malaysiakini.com

 

 

The Federal Court decision that Perak speaker V Sivakumar did not have the right to suspend BN Menteri Besar Zambry Abd Kadir and his six cabinet members is a perverse judgment. It is perverse because it is a decision that was made in blatant defiance of Article 72 (1) of the Federal Constitution which says, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

 

The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words, the judges have refused to do justice according to law. Incidentally, ultra vires does not mean “outside the law”. It means “outside one’s jurisdiction, beyond the scope of one’s power or authority”.

 

And we may ask, who is the Federal Court to say what is beyond the jurisdiction of the speaker when the supreme law of the country says that “the validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”.

 

Don’t these judges realise that they have actually done a disservice to the government of the day? Perhaps they have never heard of the Taff Vale case.

 

In 1900, the English House of Lords, which is the highest court in the land just as our Federal Court is the highest court in this country, handed down an outrageous decision which was unpopular to the common people of England.

 

Voters threw out Government after Judges erred

 

The judges of the House of Lords by their judgment had unwittingly done a great disservice to the Conservative government of the day because in the general election of 1906, it was toppled by a landslide.

 

The case which was the cause of the fall of the Conservative government was Taff Vale Railway Company versus Amalgamated Society of Railway Servants.

 

It is best that I let Lord Denning take up the story from his book ‘Landmarks in the Law’:

 

“There was the great Taff Vale case. To understand it, you must know that the trade unions were virtually friendly societies. The members paid their subscriptions into a fund, out of which benefits could be paid to members if they were ill or out of employment.

 

“Now in the Taff Vale case, the railwaymen’s union called a strike at the railway station at Cardiff. The men left work and set up peaceful pickets so as to persuade others not to go to work. The trains could not run, and the company lost money. The railway were advised to bring an action against the union itself, seeking an injunction and damages. The Court of Appeal threw out the action.

 

“But the House of Lords, in a startling judgment, overruled the Court of Appeal. They issued an interlocutory injunction against the trade union itself, restraining it from setting up the pickets, and said that the railway company could recover damages which could be enforced against trade union funds.

 

“Later, at the trial itself, the damages were assessed at £23,000 and that sum was paid out of the funds of the trade union. £23,000 in 1900. What would that be now?

 

“In the eyes of trade unions, that was an outrageous decision. It meant that the railway company could take all the funds subscribed by the members so as to meet the damages. It meant that, in future, a trade union could never call a strike, else it would be in peril of losing all its funds. It meant virtually the end of trade unions. As GM Trevelyan says in his History: ‘It struck at the very heart of trade union action’.

 

“That case had immense political consequences. At the general election of 1906, there came into being a new political party. It was the Labour party. They ran a host of candidates themselves. They pledged complete immunity for trade unions. Many of the Liberal candidates gave the same pledge.

 

“The result of the general election was like an earthquake. Liberals had 397 seats. The new Labour party had 50 seats. The Conservatives only 157. It was a sweeping victory for the trade unions.

 

“Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Statute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”

 

I think the message of the Taff Vale case to our judges of the Federal Court should be clear enough. The electorate may decide, just as the voters did in 1906 England to throw out the Conservative government, to use the power of their vote to unseat the BN government in the next general election because they do not trust the judges.

 

What if Speaker ignores court decision?

 

Poor Najib Abdul Razak, our new prime minister, it is the judges who have let him down. Unfortunately it would be the prime minister who has to carry the baby, but not the irresponsible judges who did all the damage by not administering justice according to law.

 

The law, in the present context, is the Federal Constitution, in particular, Article 72 which states:

 

(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

 

(2) No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof.

 

(3) No person shall be liable to any proceedings in any court in respect of anything published by or under the authority of the Legislative Assembly of any State.

 

Suppose Sivakumar were to ignore the declarative decree of the Federal Court, what then?

 

Clause (2) of Article 72 of the Federal Constitution says that “No person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the Legislative Assembly of any State or of any committee thereof’.

 

The Federal Court can say anything they like but the speaker is not liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the legislative assembly.

 

The order of the Federal Court seems to me to be a ‘brutum fulmen’, which in Latin means “ineffectual thunderbolt” – an action which is loud but ineffective.

_____________________________________________________________________________________________________________________________

*Justice (rtd) NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh.

 

Harsh Statements About The Sultan.

NH CHAN

Former Court of Appeal judge

 

20th February 2009

Malaysiakini.

 

Now we know why the people of Perak and elsewhere in Malaysia, are making harsh statements about the sultan. A quick search on the Internet will prove this.

 

It is the perception of the people that matters; and the confidence of the people is destroyed when they go away thinking that he was biased – that he had been influenced by Najib.

 

It is very sad that Sultan Azlan Shah, who had been held in high esteem internationally and by the populace, has, in a careless moment, lost all that.

 

His reputation for fairness and justice has been shattered when they go away thinking that he had been influenced by Najib or that he has favoured BN. It does not matter whether he did, in fact, favour one side unfairly.

 

Suffice it that reasonable people might think that he did. The die is cast and we cannot put the clock back. Hereafter, there may be many who will no longer believe in his speeches on good governance and the integrity of the judiciary.

 

The impression is that he does not practise what he preaches.

 

When the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly, he has two choices.

 

First, he may request the ruler to dissolve the assembly for the purpose of a state election. Second, if his request is turned down by the ruler, “he shall tender the resignation of the executive council”.

 

This is provided in Article XVI, Clause (6) which reads: “(6) if the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

 

What Article XVI, Clause (6) says is this: If the menteri besar ceases to command the confidence of the majority of the legislative assembly, he shall tender the resignation of the executive council, unless the ruler has, at the request of the menteri besar, dissolved the legislative assembly.

 

However, in the present case, Mohd Nizar on Feb 4, had requested the ruler to dissolve the legislative assembly, and the ruler informed him on Feb 5 that he acted in his discretion to withhold his consent for the dissolution of the assembly.

 

That being the case, the menteri besar has no other choice but to tender the resignation of the executive council.

 

Under Article XWI, Clause (2), paragraph (b), the ruler has a personal discretion to withhold his consent to the menteri besar’s request for the dissolution of the legislative assembly.

 

Unfortunately, the ruler, in the present case, has acted unconstitutionally when he side stepped the constitutional provisions of Article XVI, Clause (6) of the laws of the Perak constitution.

 

This was what he did.

 

The Sultan of Perak’s media statement said: “Mohd Nizar was summoned to an audience with the sultan to be informed of the ruler’s decision not to dissolve the State Assembly, and in accordance with the provisions of Article XVI (6) of the Perak Darul Ridzuan State Constitution, the Sultan of Perak ordered Mohd Nizar to resign from his post as Perak menteri besar together with the members of the state executive council with immediate effect.

 

“If Mohd Nizar does not resign from his post as Perak menteri besar together with the state executive council members, then the posts of menteri besar and state executive councillors are regarded as vacant.”

 

As we know the sultan is a constitutional monarch who has no power to rule except a couple of discretionary powers mentioned in Article XVIII, Clause (2).

 

So, apart from the couple of matters mentioned in Article XVIII, Clause (2), the Sultan of Perak has no power to order Mohd Nizar to resign from his post as Perak menteri besar together with the members of the state executive council with immediate effect.

 

Nor has he the power to declare that the posts of menteri besar and state executive councillors are regarded as vacant.

 

In the present case, the menteri besar had acted under Article XVI, Clause (6) which permitted him to request the ruler to dissolve the legislative assembly if he ceased to command the confidence of the majority of the members of the legislative assembly.

 

 

In this case, the ruler turned down his request. Then the menteri besar has no choice but “to tender the resignation of the executive council”.

 

So, why did the ruler, in the present case, depart from the provisions of Article XVI, Clause (6)?

 

Under the provisions of Clause (6), the sultan knew that the ball was in the menteri besar’s court and it was to be the menteri besar who “should tender the resignation of the executive council”.

 

Yet he chose to ignore these provisions of the Perak constitution.

___________________________________________________________________________________________________________________________

*Justice (rtd) NH CHAN is a former Court of Appeal judge famous for his ‘All is not well in the House of Denmark’ comment regarding judicial corruption. He was then referring to High Court’s commercial division which was located in Wisma Denmark, Kuala Lumpur. The quote is based on Shakespeare’s ‘Something is rotten in the state of Denmark’. He now lives in Ipoh.

Unclear Limits of Discretion

The Constitution is still evolving and responding to the times, and only the future will tell the shape of things to come.

 

Reflecting on the Law

 

By Dr. Shad Saleem Faruqi

Wednesday, 22 April 2009

  

EVER since the general election of March 2008, and especially after the constitutional temasyah in Perak, an animated debate is raging about the powers and position of the Malay Rulers.

 

History: Malay kingship existed as early as the first century and the powers of the Sultans were nearly absolute through much of history. During the colonial period these powers waned.

 

The decline began with the absorption of Malay kingdoms into the Federated Malay States of 1895 and the Federation of Malaya 1948.

 

The Merdeka Constitution of 1957 restored the honours and dignities of the Sultans but at the same time converted the Rulers to constitutional monarchs.

 

Save for a limited number of situations in which a margin of discretion is conferred, the federal and state Constitutions require the Yang di-Pertuan Agong and the Rulers to act on the advice of the elected political executive.

 

During the last 52 years things did not always work this way. In the 60s and 70s the influence of the Sultans on government and society was far greater than what the Constitution envisaged. History overshadowed the law.

 

The 80s and 90s saw several constitutional amendments to curb royal powers. The Yang di-Pertuan Agong and the Sultans could be bypassed in the ordinary legislative process.

 

Royal immunities were abolished. If sentenced to more than one day of imprisonment, a Ruler could be removed from his throne unless pardoned by the Majlis Raja-Raja.

 

However, the spirals of history are at work again. Some sections of the population, including many members of the legal community, are beginning to view the Rulers as the last bastion against the political executive’s omnipotence.

 

In response to these popular sentiments and in order to recover ground that was lost in the 80s and 90s, the Conference of Rulers, the Yang di-Pertuan Agong and the state Rulers have lately shown tremendous assertiveness in a number of areas.

 

Leading examples relate to appointments to the superior courts, refusal to extend the tenure of a retiring Chief Justice, appointment of Chief Ministers in Perlis, Terengganu, Perak and Selangor after the March 2008 general election, refusal of premature dissolution of the Perak Assembly, dismissal of a Chief Minister and appointment of a new Chief Minister in Perak early this year.

 

A few weeks ago, in exercise of its powers under Article 38(2) to deliberate on questions of national policy, the Majlis Raja-Raja appointed the Yang di-Pertuan Agong as the Patron of Universiti Sains Malaysia to keep the Conference informed of USM’s progress as an apex university.

 

Some of these royal assertions have raised eyebrows. Questions are being asked whether an activist monarchy is compatible with the letter and spirit of the Federal Constitution.

 

In this area the “glittering generalities” of the Constitution provide ample scope for a kaleidoscope of views.

 

Let us examine the constitutional canvass.

 

Constitutional monarchs: Article 71 and the Eighth Schedule of the Federal Constitution require that all state Constitutions shall contain some “essential provisions”.

 

The most significant provision is that, except in relation to discretionary powers, all state Rulers “shall act in accordance with the advice of the Executive Council”.

 

The implication of this is that the state Rulers is not absolute monarchs. They are not expected to rule in person or to seek to control the day-to-day administration of government.

 

However, the Constitution is equally clear that Their Majesties are anointed with certain discretionary powers in critical areas.

 

Personal powers: All state Constitutions confer discretionary powers on the Rulers in relation to the following matters:

 

·         Any function as Head of the Muslim religion or relating to Malay adat;

 

·         The appointment of heir, consort, Regent, Council of Regency and Council of Succession;

 

·         Appointments to Malay customary ranks, titles, honours and dignities; and,

 

·         Regulation of royal courts and palaces.

 

In addition, there is a right to succeed to the throne in accordance with the Constitution of the state and without interference from the Federal Government.

 

Though immunities are abolished, some special treatment is still accorded. No one can sue or prosecute a Sultan without the Attorney-General’s consent. Cases will not be heard in ordinary courts but in a Special Court. The Majlis will nominate two out of five judges to the court. If a Sultan is convicted of a crime the Majlis can pardon him.

 

Political powers: Though the Sultans are above politics, federal and state Constitutions confer on them some monumentally important political discretions.

 

Under Article 38(6) of the Federal Constitution, all Sultans in their capacity as members of the Conference of Rulers may act in accordance with their wishes in the following matters:

 

•              Proceedings relating to the election or removal of the Yang di-Pertuan Agong;

 

•              Election of the Timbalan Yang di-Pertuan Agong;

 

•              The advising on many key federal appointments;

 

•              The giving or withholding of consent to any law altering the boundaries of a state;

 

•              The giving or withholding of consent to any law affecting the privileges and position, honours or dignities of the Rulers;

 

•              Agreeing or disagreeing to the extension of any religious acts, observances and ceremonies to the Federation as a whole; and,

 

•              Appointment of members of the Special Court under Article 182(1).

 

Under section 1(2) of Part I of the Eighth Schedule of the Federal Constitution and in various provisions of State Constitutions the Rulers are allowed to exercise personal judgment in the following matters:

 

•              Appointment of a Mentri Besar;

 

•              Withholding of consent to a request for the dissolution of the Assembly; and,

 

•              The making of a request for a meeting of the Conference of Rulers.

 

Two of the above powers were exercised in Perak with telling effect a few weeks ago.

 

Under state Constitutions every Sultan has a prerogative to advise, to encourage and to warn. He can remonstrate and object to a proposed course of action. He can delay action on a matter referred to him. But after a reasonable time he must accede to advice.

 

Some states Constitutions confer additional discretionary powers. For example, the Laws of the Constitution of Kelantan invest His Royal Highness with personal powers in the matter of appointment of some officials (Article 13), appeals to the Sultan against decisions of any person (Article 25), and appointment of the State Service Commission (Article 61).

 

Legally, these discretionary powers are very broad. In actual practice, they are hemmed in by constitutional guidelines and by binding conventions that “supply the flesh to clothe the dry bones of the law”.

 

In sum, it can be stated that despite their overall role as constitutional heads who reign but do not rule; who are above politics; who supply the unifying and dignifying element of state Constitutions; the Malay Rulers have an undoubted residue of critical, discretionary powers whose actual ambit has not yet been authoritatively determined.

 

The Constitution is still evolving and responding to the felt necessities of the times. The British model of a largely ceremonial monarchy has not taken hold. Only the future will tell the shape of things to come.

_________________________________________________________________________________________________________________________

Dr Shad Saleem Faruqi is Professor Emeritus at Universiti Teknologi MARA.

 

©Star

An Avalanche of Legal Issues

Reflecting On the Law

By Dr.Shad Saleem Faruqi

Wednesday March 25, 2009

The legal skirmishes triggered by the four Perak assemblymen who defected have sullied the reputations of several hallowed institutions and opened up new legal frontiers where no Malaysian has up to now travelled.

THE four Perak Assemblymen who slithered down the treacherous slope of defections could not have anticipated the political and legal avalanche they have triggered.

The punches and counter-punches and the legal skirmishes over issues of procedure and substance are opening up new legal frontiers where no Malaysian has up to now travelled.

Several constitutional institutions, including the state’s Sultan, the Election Commission, the Attorney-General’s office, the police, the Malaysian Anti-Corruption Commission, the State Speaker and the Secretary to the State Assembly, have become embroiled in the controversy and have had their good names sullied.

The judiciary has not been spared.

When the case first reached the courts, a Judicial Commissioner gave judgments that defy understanding. To have a Judicial Commissioner and not a senior High Court judge presiding over this novel constitutional case was indeed disappointing.

Hearings were not in open court but in chambers. The Speaker of the Perak Assembly was declared to be a public servant despite indisputable legal evidence that he is exempted from such a definition.

The Speaker was not allowed to be represented by private lawyers. He was not even allowed to represent himself!

There was an unbelievable ruling that no conflict of interest existed in the state legal adviser representing the unwilling Speaker against the state government!

These initial judicial missteps were fortunately corrected on appeal but they left a bad feeling and sullied the reputation of a hallowed institution whose resurgence we were all praying for.

Defections: As opposed to the stability of the American presidential system, governments in parliamentary democracies often rise and fall because of political defections.

Unfortunately, the right to disassociate and re-associate is part of the fundamental right to association under the Federal Constitution’s Article 10(1) (c) and the decision in Nordin Salleh (1992).

We need a constitutional amendment to Articles 10(1) and 48(6). There are eminent legal models available in other Commonwealth countries. MPs and Assemblymen who hop midstream should be required to vacate their seats and seek a fresh mandate from their constituency.

Dissolution: The right to refuse a premature dissolution is an undoubted constitutional discretion of the Sultan under Article 18(2) (b) and 36(2) of the Perak Constitution.

We have instances in Kelantan in 1977 and in Sabah in the 90s when requests by MBs for premature dissolution were politely turned down. Judicial authority in Datuk Amir Kahar (1995) confirms the non-reviewability of this discretion.

Even if it is argued that the Sultan was bound by constitutional convention to pay heed to the advice of the then beleaguered MB, it must be noted that constitutional conventions are not law. They are rules of political morality that are non-enforceable in a court: Government of Kelantan v Government of Malaya (1963).

Dismissal of MB: This poses more complex issues. Article 16(7) of the Perak Constitution implies that the Sultan has no power to dismiss an MB. An MB’s cessation of office must come about by resignation under Article 16(6):

“If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the Executive Council.”

The Sarawak case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli (1966) ruled that lack of confidence may be demonstrated only by a vote of no-confidence in the Council Negeri. Factors outside the Council Negeri are irrelevant.

The High Court will have to decide whether to follow Ningkan or to distinguish it on many grounds, among them, that in Sarawak in 1966 the Assembly was in session when the Governor sacked Ningkan. In Perak, the Assembly was in adjournment and a vote on the floor was, therefore, not possible.

The High Court may also note that Article 16(6) does not make any explicit reference to a vote of no-confidence in the Assembly. It uses the words “confidence of the majority of the members of the Assembly”.

The Privy Council in Adegbenro v Akintola (1963) and the Sabah High Court in Datuk Amir Kahar (1995) have held that factors other than a vote of no confidence can be taken note of in determining the question of confidence, and that there is no limitation to the consideration of factors outside the Assembly.

There was an additional complication. The Speaker of the Assembly declared that the hoppers had ceased to be members of the Assembly. With them excluded, Nizar disputed the loss of confidence and therefore refused to resign under Article 16(6).

In such a stalemate, did the Sultan have a residual, prerogative power to dismiss Nizar? In addition could His Highness rely on section 47 of the Interpretation Act that the power to appoint includes the power to dismiss? The court has to decide.

Appointment of MB: This is a discretionary function but is controlled and structured by constitutional guidelines. The Sultan has to appoint someone who, in his opinion, is likely to command the confidence of the State Assembly.

If there is a clear-cut leader with the requisite numbers, the discretion of the Ruler is merely nominal. But in an Assembly where no one has a clear majority, (a “hung Assembly”) the Sultan’s personal discretion acquires great significance.

In this case, the Sultan was obviously of the view that Zamri had the requisite numbers and therefore swore him in. The Sultan relied on face to face, separate interviews with the actors involved. The court will have to determine whether this manner of determination is legally justified.

Along with the above contentious issues there is a whole range of controversies that the Perak crisis has engendered.

Powers of Sultan: Can a Sultan be sued in the courts for his official acts? Is a threat to sue tantamount to sedition or treason?

Speaker’s powers: If open-dated resignation letters have no effect, as was determined in Datuk Ong Kee Hui v Sinyium (1983), can the Speaker still rely on them to declare that four Assembly seats have fallen vacant?

Is the Election Commission bound by the rulings of the Speaker on this point or can it decide on the issue independently?

The Speaker of an Assembly is indeed the master of proceedings and procedures in his Assembly, but does his power go so far as to declare seats vacant and to deprive members of their legal right to attend? Is his decision absolutely unimpeachable in any court?

In India, courts do not refrain from pronouncing on the validity of decisions in the House if human rights or constitutional issue are involved.

If the Assembly was not under prorogation but merely under adjournment, can the Speaker convene it on his own without an order from the Sultan?

Who must issue the summons, the Speaker or the Secretary to the Assembly? Does the Speaker have the power to dismiss a disobedient Assembly Secretary?

Privileges committee: The committee has undoubted powers to try members for contempt. But its decisions are not final and any recommendation to dismiss, suspend or discipline members must be confirmed by the Assembly.

Immunity of members: There is no legal bar to the Assembly meeting outside its official premises. The constitutional issue is whether those, including the police, who obstructed the Assembly from meeting are liable to punishment by the Assembly for contempt?

Likewise, are the police and the Anti-Corruption Commission guilty of serious breach of the privileges of the Assembly by questioning the Speaker and Privileges Committee members for their official conduct?

These are serious triable issues. Our answers to them must not be based on expediency or political partisanship but on well established principles of constitutional law.

_______________________________________________________________________________________________________________________

Dr Shad Faruqi is Professor of Law at Universiti Teknologi MARA.

 

©Star

Repentance

Riyad Us Saliheen

Human is not free from sin and mistakes. Allah Swt is a Forgiver and when we sought his forgiveness and repent sincerely. The Scholars held that it is necessary for us to repent from every sin we have created. If the offense involves the Right of Allah SWT, not involving a human, then there are three conditions to be met in order that repentance be accepted by Allah:

1. Cease from committing the sin.

2. Regretted for committing it.

3. Resolve not to repeat it.

Any repentance that fails to meet any of these three conditions would not be considered sound.

But if the sin involves a human’s right, it requires a fourth condition, i.e., to absolve oneself from such right. If it is a property, he should return it to its rightful owner. If it is slandering or backbiting, one should ask the pardon of the offended.

One should also repent from all sins. According to some scholars even if on repents from some, his repentance would still be accepted. However, he should endeavors to repent from all the sins. Scriptural proofs from the Al-Quran, and the Sunnah and the consensus of the scholars support the incumbency of repentance.

Allah, the Exalted says:

· “And all of you beg Allah to forgive you, O believers, that you may be successful”. [An-Nur, 24:31]

· “Seek the forgiveness of your Rabb, and turn to Him in repentance”. [Hud, 11:3]

· “O you who believe! Turn to Allah with sincere repentance!” [At-Tahrim, 66: 8]

13. Abu Hurairah (May Allah be pleased with him) reported: I heard Messenger of Allah (PBUH) saying: “By Allah, I seek Allah’s forgiveness and repent to Him more than seventy times a day.”[Al-Bukhari].

Commentary:
1. It is an inducement for seeking pardon and forgiveness. The Prophet (PBUH), whose past and future sins were forgiven, yet sought Allah’s forgiveness – more so about us, who tends to commit sins regularly, must seek pardon and forgiveness from Allah.

2. Sincere and ceaseless prayer for pardon is essential for the sins committed by us unintentionally could also be forgiven. The above Hadith lays great emphasis on seeking pardon.

14. Al-Aghar bin Yassar Al-Muzani (May Allah be pleased with him) narrated that: The Messenger of Allah (PBUH) said: “Turn you people in repentance to Allah and beg pardon of Him. I turn to Him in repentance a hundred times a day”. [Muslim].

15 Anas bin Malik Al-Ansari (May Allah be pleased with him) the servant of the Messenger of Allah narrated: Messenger of Allah (PBUH) said, “Verily, Allah is more delighted with the repentance of His slave than a person who lost his camel in a desert land and then finds it (unexpectedly)”.[Al-Bukhari and Muslim].

In another version of Muslim, he said: “Verily, Allah is more pleased with the repentance of His slave than a person who has his camel in a waterless desert carrying his provision of food and drink and it is lost. He, having lost all hopes (to get that back), lies down in shade and is disappointed about his camel; when all of a sudden he finds that camel standing before him. He takes hold of its reins and then out of boundless joy blurts out: ‘O Allah, You are my slave and I am Your Rabb’.He commits this mistake out of extreme joy”.

Commentary:
1. This Hadith also deals with the inducement and merit of repentance and pardon for sins. Allah is highly pleased with repentance.

2. One will not have to account for a mistake made unintentionally.

3. It is permissible to take an oath to stress on one’s pardon.

4. One can quote an instance for the purpose of understanding and elaboration.

16. Abu Musa Al-Ash`ari (May Allah be pleased with him) reported: The Prophet (PBUH) said: “Allah, the Exalted, will continue to stretch out His Hand in the night so that the sinners of the day may repent, and continue to stretch His Hand in the daytime so that the sinners of the night may repent, until the sun rises from the west”. [Muslim].

Commentary: This Hadith confirms an essential attribute of Allah, i.e., the Hand which He stretches out anytime He wishes without drawing similarity to it, nor interpretation. Such was the attitude of the pious predecessors with regards to all of the essential Attributes of Allah. It is deduced from this Hadith that if one commits a sin during any hour of day or night, he should immediately seek the forgiveness of Allah as a result.

17. Abu Hurairah (May Allah be pleased with him) narrated: Messenger of Allah (PBUH) said, “He who repents before the sun rises from the west, Allah will forgive him”. [Muslim].

Commentary: Tawbah means returning to Allah from sins. When a person commits a sin, he goes away from Allah. When he repents, he returns to Allah and desires for being pardoned by Him, and getting near Him. This returning towards Him is Tawbah. When it is said that `Allah turns towards him’, it means that Allah accepts his repentance.

18. `Abdullah bin `Umar bin Al-Khattab (May Allah be pleased with them) reported that: The Prophet (PBUH) said, “Allah accepts a slave’s repentance as long as the latter is not on his death bed (that is, before the soul of the dying person reaches the throat)”. [At-Tirmidzi, who categorized it as Hadith Hasan].

Commentary: The word ghargharah means the stage when soul is about to leave the body and reaches the throat. In other words, the time when one suffers the agony of death.

Hadith Hasan means that Hadith the authenticity of which is connected without any technical defect. Their narrators, however, are next to those of Hadith Sahih. In the opinion of Muhaddithin (Hadith scholars), Hadith Hasan is also reliable as Hadith Sahih.

19. Zirr bin Hubaish reported: I went to Safwan bin `Assal (May Allah be pleased with him) to inquire about wiping with wet hands over light boots while performing Wudu’. He asked me, “What brings you here, Zirr?” I answered: “Search for knowledge”. He said, “Angels spread their wings for the seeker of knowledge out of joy for what he seeks”. I told him, “I have some doubts in my mind regarding wiping of wet hands over light boots in the course of performing Wudu’ after defecation or urinating. Now since you are one of the Companions of the Prophet (PBUH), I have come to ask you whether you heard any saying of the Prophet (PBUH) concerning it?” He replied in the affirmative and said, “He (PBUH) instructed us that during a journey we need not take off our light boots for washing the feet up to three days and nights, except in case of major impurity (after sexual intercourse). In other cases such as sleeping, relieving oneself or urinating, the wiping of wet hands over light boots will suffice.” I, then, questioned him, “Did you hear him say anything about love and affection?” He replied, “We accompanied the Messenger of Allah (PBUH) in a journey when a bedouin called out in a loud voice, `O Muhammad.’ The Messenger of Allah (PBUH) replied him in the same tone, `Here I am. ‘I said to him (the bedouin), `Woe to you, lower your voice in his presence, because you are not allowed to do so.’ He said, `By Allah! I will not lower my voice,’ and then addressing the Prophet (PBUH) he said, `What about a person who loves people but has not found himself in their company.’ Messenger of Allah (PBUH) replied, `On the Day of Resurrection, a person will be in the company of those whom he loves. ‘ The Messenger of Allah then kept on talking to us and in the course of his talk, he mentioned a gateway in the heaven, the width of which could be crossed by a rider in forty or seventy years”.

Sufyan, one of the narrators of this tradition, said: “This gateway is in the direction of Syria. Allah created it on the day He created the heavens and the earth. It is open for repentance and will not be shut until the sun rises from that direction (i.e., the West) (on Doomsday)”. [At-Tirmidzi, who categorized it as Hadith Hasan Sahih]

Commentary:
1. We learn from this Hadith that in ablution, it is permissible to wipe over light boots rather than washing the feet. It is called Mash. The period, in which Mash is intact, in case of travelers it is three days and three nights; while for the residents, it is one day and one night only. A precondition for it is that light boots should be clean and worn after full Wudu’. Ankles should also be covered. In case of breach of ablution, the wiping over the socks is sufficient, and there is no need for washing the feet. Wudu’ is invalidated by sleeping, call of nature and passing of wind. This is called Hadith Asghar. In the case of Hadith Akbar, which occurs because of coitus, menses and wet dream, washing of the whole body becomes obligatory. It means that the privilege of wiping over the light boots is also ended in this case, in the same way as it does after the expiry of period specified for it.

2. One should associate himself with the pious people so that he is counted among them. One also comes to know many other points from this Hadith which every intelligent person can understand with a little effort.

20. Abu Sa`id Al-Khudri (May Allah be pleased with him) reported: Prophet of Allah (PBUH) said: “There was a man from among a nation before you who killed ninety-nine people and then made an inquiry about the most learned person on the earth. He was directed to a monk. He came to him and told him that he had killed ninety-nine people and asked him if there was any chance for his repentance to be accepted. He replied in the negative and the man killed him also completing one hundred. He then asked about the most learned man in the earth. He was directed to a scholar. He told him that he had killed one hundred people and asked him if there was any chance for his repentance to be accepted. He replied in the affirmative and asked, `Who stands between you and repentance? Go to such and such land; there (you will find) people devoted to prayer and worship of Allah, join them in worship, and do not come back to your land because it is an evil place.’ So he went away and hardly had he covered half the distance when death overtook him; and there was a dispute between the angels of mercy and the angels of torment. The angels of mercy pleaded, ‘This man has come with a repenting heart to Allah,’ and the angels of punishment argued, ‘He never did a virtuous deed in his life.’ Then there appeared another angel in the form of a human being and the contending angels agreed to make him arbiter between them. He said, `Measure the distance between the two lands. He will be considered belonging to the land to which he is nearer.’ They measured and found him closer to the land (land of piety) where he intended to go, and so the angels of mercy collected his soul”. [Al-Bukhari and Muslim].

In another version: “He was found to be nearer to the locality of the pious by a cubit and was thus included among them”. Another version says: “Allah commanded (the land which he wanted to leave) to move away and commanded the other land (his destination) to draw nearer and then He said: “Now measure the distance between them.’ It was found that he was nearer to his goal by a hand’s span and was thus forgiven”. It is also narrated that he drew closer by a slight movement on his chest.

Commentary:
1. One comes to know from this Hadith that the gate of Tawbah is open even for the worst of the sinners; and Allah forgives everyone provided he repents sincerely, the conditions for such repentance have already been discussed.

2. It is the duty of a religious scholar that while discussing a problem, he should keep in mind the psychological aspects of the questioner and adopt a policy which neither causes a change in the Injunction of Allah nor make the sinner reckless in his sins out of frustration.

3. When a situation warrants, angels appear in the form of men on Orders of Allah.

21. Abdullah bin Ka`b, who served as the guide of Ka`b bin Malik (May Allah be pleased with him) when he became blind, narrated: I heard Ka`b bin Malik (May Allah be pleased with him) narrating the story of his remaining behind instead of joining Messenger of Allah (PBUH) when he left for the battle of Tabuk. Ka`ab said: “I accompanied Messenger of Allah (PBUH) in every expedition which he undertook excepting the battle of Tabuk and the battle of Badar. As for the battle of Badr, nobody was blamed for remaining behind as Messenger of Allah (PBUH) and the Muslims, when they set out, had in mind only to intercept the caravan of the Quraish. Allah made them confront their enemies unexpectedly. I had the honour of being with Messenger of Allah (PBUH) on the night of `Aqabah when we pledged our allegiance to Islam and it was dearer to me than participating in the battle of Badar, although Badr was more well-known among the people than that. And this is the account of my staying behind from the battle of Tabuk. I never had better means and more favourable circumstances than at the time of this expedition. And by Allah, I had never before possessed two riding-camels as I did during the time of this expedition. Whenever Messenger of Allah (PBUH) decided to go on a campaign, he would not disclose his real destination till the last moment (of departure). But on this expedition, he set out in extremely hot weather; the journey was long and the terrain was waterless desert; and he had to face a strong army, so he informed the Muslims about the actual position so that they should make full preparation for the campaign. And the Muslims who accompanied Messenger of Allah (PBUH) at that time were in large number but no proper record of them was maintained.” Ka`b (further) said: “Few were the persons who chose to remain absent believing that they could easily hide themselves (and thus remain undetected) unless Revelation from Allah, the Exalted, and Glorious (revealed relating to them). And Messenger of Allah (PBUH) set out on this expedition when the fruit were ripe and their shade was sought. I had a weakness for them and it was during this season that Messenger of Allah (PBUH) and the Muslims made preparations. I also would set out in the morning to make preparations along with them but would come back having done nothing and said to myself: ‘I have means enough (to make preparations) as soon as I like’. And I went on doing this (postponing my preparations) till the time of departure came and it was in the morning that Messenger of Allah (PBUH) set out along with the Muslims, but I had made no preparations. I would go early in the morning and come back, but with no decision. I went on doing so until they (the Muslims) hastened and covered a good deal of distance. Then I wished to march on and join them. Would that I had done that! But perhaps it was not destined for me. After the departure of Messenger of Allah (PBUH) whenever I went out, I was grieved to find no good example to follow but confirmed hypocrites or weak people whom Allah had exempted (from marching forth for Jihad). Messenger of Allah (PBUH) made no mention of me until he reached Tabuk. While he was sitting with the people in Tabuk, he said, `What happened to Ka`ab bin Malik?’ A person from Banu Salimah said: “O Messenger of Allah, the (beauty) of his cloak and an appreciation of his finery have detained him.’ Upon this Mu`adz bin Jabal (May Allah be pleased with him) admonished him and said to Messenger of Allah (PBUH): “By Allah, we know nothing about him but good.’ Messenger of Allah (PBUH), however, kept quiet. At that time he (the Prophet (PBUH)) saw a person dressed in white and said, `Be Abu Khaithamah.‘ And was Abu Khaithamah Al-Ansari was the person who had contributed a Sa` of dates and was ridiculed by the hypocrites.” Ka`ab bin Malik further said: “When the news reached me that Messenger of Allah (PBUH) was on his way back from Tabuk, I was greatly distressed. I thought of fabricating an excuse and asked myself how I would save myself from his anger the next day. In this connection, I sought the counsels of every prudent member of my family. When I was told that Messenger of Allah (PBUH) was about to arrive, all the wicked ideas vanished (from my mind) and I came to the conclusion that nothing but the truth could save me. So I decided to tell him the truth. It was in the morning that Messenger of Allah (PBUH) arrived in Al-Madinah. It was his habit that whenever he came back from a journey, he would first go to the mosque and perform two Raka’ah (of optional prayer) and would then sit with the people. When he sat, those who had remained behind him began to put forward their excuses and take an oath before him. They were more than eighty in number. Messenger of Allah (PBUH) accepted their excuses on the very face of them and accepted their allegiance and sought forgiveness for them and left their insights to Allah, until I appeared before him. I greeted him and he smiled and there was a tinge of anger in that. He then said to me, ‘Come forward’. I went forward and I sat in front of him. He said to me, `What kept you back? Could you not afford to go in for a ride?’ I said, ‘O Messenger of Allah, by Allah, if I were to sit before anybody else, a man of the world, I would have definitely saved myself from his anger on one pretext or the other and I have a gifted skill in argumentation, but, by Allah, I am fully aware that if I were to put forward before you a lame excuse to please you, Allah would definitely provoke your wrath upon me. In case, I speak the truth, you may be angry with me, but I hope that Allah would be pleased with me (and accept my repentance). By Allah, there is no valid excuse for me. By Allah, I never possessed so good means, and I never had such favourable conditions for me as I had when I stayed behind.’ Thereupon, Messenger of Allah (PBUH) said, ‘This man spoke the truth, so get up (and wait) until Allah gives a decision about you.’ I left and some people of Banu Salimah followed me. They said to me, `By Allah, we do not know that you committed a sin before. You, however, showed inability to put forward an excuse before Messenger of Allah (PBUH) like those who stayed behind him. It would have been enough for the forgiveness of your sin that Messenger of Allah (PBUH) would have sought forgiveness for you.’ By Allah, they kept on reproaching me until I thought of going back to Messenger of Allah (PBUH) and retract my confession. Then I said to them, ‘Has anyone else met the same fate?’ They said, ‘Yes, two persons have met the same fate. They made the same statement as you did and the same verdict was delivered in their case.’ I asked, `Who are they?’ They said, ‘Murarah bin Ar-Rabi` Al-`Amri and Hilal bin Umaiyyah Al-Waqifi.’ They mentioned these two pious men who had taken part in the battle of Badr and there was an example for me in them. I was confirmed in my original resolve. Messenger of Allah (PBUH) prohibited the Muslims to talk to the three of us from amongst those who had stayed behind. The people began to avoid us and their attitude towards us changed and it seemed as if the whole atmosphere had turned against us, and it was in fact the same atmosphere of which I was fully aware and in which I had lived (for a fairly long time). We spent fifty nights in this very state and my two friends confined themselves within their houses and spent (most of their) time weeping. As I was the youngest and the strongest, I would leave my house, attend the congregational Salat, move about in the bazaars, but none would speak to me. I would come to Messenger of Allah (PBUH) as he sat amongst (people) after the Salat, greet him and would ask myself whether or not his lips moved in response to my greetings. Then I would perform Salat near him and look at him stealthily. When I finish my Salat, he would look at me and when I would cast a glance at him he would turn away his eyes from me. When the harsh treatment of the Muslims to me continued for a (considerable) length of time, I walked and I climbed upon the wall of the garden of Abu Qatadah, who was my cousin, and I had a great love for him. I greeted him but, by Allah, he did not answer to my greeting. I said to him, `O Abu Qatadah, I adjure you in the Name of Allah, are you not aware that I love Allah and His Messenger (PBUH)?’ I asked him the same question again but he remained silent. I again adjured him, whereupon he said, `Allah and His Messenger (PBUH) know better.’ My eyes were filled with tears, and I came back climbing down the wall.

As I was walking in the bazaars of Al-Madinah, a man from the Syrian peasants, who had come to sell food grains in Al-Madinah, asked people to direct him to Ka`ab bin Malik. People pointed towards me. He came to me and delivered a letter from the King of Ghassan, and as I was a scribe, I read that letter whose purport was: `It has been conveyed to us that your friend (the Prophet (PBUH)) was treating you harshly. Allah has not created you for a place where you are to be degraded and where you cannot find your right place; so come to us and we shall receive you graciously.’ As I read that letter I said: ‘This is too a trial,’ so I put it to fire in an oven. When forty days had elapsed and Messenger of Allah (PBUH) received no Revelation, there came to me a messenger of the Messenger of Allah and said, `Verily, Messenger of Allah (PBUH) has commanded you to keep away from your wife.’ I said, `Should I divorce her or what else should I do?’ He said, `No, but only keep away from her and don’t have sexual contact with her.’ The same message was sent to my companions. So, I said to my wife: ‘You better go to your parents and stay there with them until Allah gives the decision in my case.’ The wife of Hilal bin Umaiyyah came to Messenger of Allah (PBUH) and said: ‘O Messenger of Allah, Hilal bin Umaiyyah is a senile person and has no servant. Do you disapprove if I serve him?’ He said, `No, but don’t let him have any sexual contact with you. ‘She said, ‘By Allah, he has no such desire left in him. By Allah, he has been in tears since (this calamity) struck him.’ Members of my family said to me, `You should have sought permission from Messenger of Allah (PBUH) in regard to your wife. He has allowed the wife of Hilal bin Umaiyyah to serve him.’ I said, ‘I would not seek permission from Messenger of Allah (PBUH) for I do not know what Messenger of Allah might say in response to that, as I am a young man’. It was in this state that I spent ten more nights and thus fifty days had passed since people boycotted us and gave up talking to us. After I had offered my Fajr prayer on the early morning of the fiftieth day of this boycott on the roof of one of our houses, and had sat in the very state which Allah described as: `The earth seemed constrained for me despite its vastness’, I heard the voice of a proclaimer from the peak of the hill Sal` shouting at the top of his voice: ‘O Ka`ab bin Malik, rejoice.’ I fell down in prostration and came to know that there was (a message of) relief for me. Messenger of Allah (PBUH) had informed the people about the acceptance of our repentance by Allah after he had offered the Fajar prayer. So the people went on to give us glad tidings and some of them went to my companions in order to give them the glad tidings. A man spurred his horse towards me (to give the good news), and another one from the tribe of Aslam came running for the same purpose and, as he approached the mount, I received the good news which reached me before the rider did. When the one whose voice I had heard came to me to congratulate me, I took off my garments and gave them to him for the good news he brought to me. By Allah, I possessed nothing else (in the form of clothes) except these garments, at that time. Then I borrowed two garments, dressed myself and came to Messenger of Allah (PBUH) On my way, I met groups of people who greeted me for (the acceptance of) repentance and they said: ‘Congratulations for acceptance of your repentance.’ I reached the mosque where Messenger of Allah (PBUH) was sitting amidst people. Talhah bin `Ubaidullah got up and rushed towards me, shook hands with me and greeted me. By Allah, no person stood up (to greet me) from amongst the Muhajirun besides him.” Ka`b said that he never forgot (this good gesture of) Talhah. Ka`b further said: “I greeted Messenger of Allah (PBUH) with `As-salamu `alaikum’ and his face was beaming with pleasure. He (PBUH) said, `Rejoice with the best day you have ever seen since your mother gave you birth. ‘I said: `O Messenger of Allah! Is this (good news) from you or from Allah?’ He said, `No, it is from Allah. ‘And it was common with Messenger of Allah (PBUH) that whenever he was happy, his face would glow as if it was a part of the moon and it was from this that we recognized it (his delight). As I sat before him, I said, I have placed a condition upon myself that if Allah accepts my Tawbah, I would give up all of my property in charity for the sake of Allah and His Messenger (PBUH)!’ Thereupon Messenger of Allah (PBUH) said, `keep some property with you, as it is better for you.’ I said, ‘I shall keep with me that portion which is in Khaibar’. I added: ‘O Messenger of Allah! Verily, Allah has granted me salvation because of my truthfulness, and therefore, repentance obliges me to speak nothing but the truth as long as I am alive.” Ka`ab added: “By Allah, I do not know anyone among the Muslims who has been granted truthfulness better than me since I said this to the Prophet (PBUH). By Allah! Since the time I made a pledge of this to Messenger of Allah (PBUH), I have never intended to tell a lie, and I hope that Allah would protect me (against telling lies) for the rest of my life. Allah, the Exalted, the Glorious, revealed these Verses:

‘Allah has forgiven the Prophet (PBUH), the Muhajirun (Muslim Emigrants who left their homes and came to Al-Madinah) and the Ansar (Muslims of Al-Madinah) who followed him (Muhammad (PBUH)) in the time of distress (Tabuk expedition), after the hearts of a party of them had nearly deviated (from the Right Path), but He accepted their repentance. Certainly, He is unto them full of kindness, Most Merciful. And (He did forgive also) the three who did not join [the Tabuk expedition and whose case was deferred (by the Prophet (PBUH)) for Allah’s Decision] till for them the earth, vast as it is, was straitened and their ownselves were straitened to them, and they perceived that there is no fleeing from Allah, and no refuge but with Him. Then, He forgave them (accepted their repentance), that they might beg for His Pardon [repent (unto Him)]. Verily, Allah is the One Who forgives and accepts repentance, Most Merciful. O you who believe! Be afraid of Allah, and be with those who are true (in word and deeds).” [At-Tawbah, 9:117,118].

Ka`ab said: “By Allah, since Allah guided me to Islam, there has been no blessing more significant for me than this truth of mine which I spoke to Messenger of Allah (PBUH), and if I were to tell a lie I would have been ruined as were ruined those who had told lies, for Allah described those who told lies with the worst description He ever attributed to anybody else, as He sent down the Revelation:

They will swear by Allah to you (Muslims) when you return to them, that you may turn away from them. So turn away from them. Surely, they are Rijsun [i.e., Najasun (impure) because of their evil deeds], and Hell is their dwelling place – a recompense for that which they used to earn. They (the hypocrites) swear to you (Muslims) that you may be pleased with them, but if you are pleased with them, certainly Allah is not pleased with the people who are Al-Fa’siqun (rebellious, disobedient to Allah)”. [At-Tawbah, 9:95-96]

Ka`ab further added: “The matter of the three of us remained pending for decision apart from the case of those who had made excuses on oath before Messenger of Allah (PBUH) and he accepted those, took fresh oaths of allegiance from them and supplicated for their forgiveness. The Prophet (PBUH) kept our matter pending till Allah decided it. The three whose matter was deferred have been shown mercy. The reference here is not to our staying back from the expedition but to his delaying our matter and keeping it pending beyond the matter of those who made their excuses on oath which he accepted”.[Al-Bukhari and Muslim]

Another version adds: “Messenger of Allah (PBUH) set out for Tabuk on Thursday. He used to prefer to set out on journey on Thursday.” Another version says: “Messenger of Allah (PBUH) used to come back from a journey in the early forenoon and went straight to the mosque where he would perform two Raka`ah prayer. Afterwards he would seat himself there”.

Commentary: This Hadith contains many aspects of warnings and advices, some of which are given below:

1. A Muslim should always speak the truth even if he has to face troubles and turmoil for it because the Pleasure of Allah lies in truth.

2. One must avoid at all costs the attitude of hypocrites because eventually one is ruined by it.

3. In spite of hardship and stringency, one must take part in Jihad.

4. For the admonition and exhortation of others, it gives justification for the economic boycott of even sincere Muslims who adopt wrong methods.

5. One must face with forbearance the difficulties which come in the way of Deen.

6. It is not praiseworthy that one gives in charity all the property he has. One must keep what is needed for the lawful needs.

7. It is lawful to give something by way of gift and reward to a person who congratulates in certain occasion or events enjoining happiness.

8. The ability to seek pardon is a gift from Allah for which one must express gratitude to Him.

9. Any promise that one makes must be kept, etc. etc.

22. Imran bin Al-Husain Al-Khuza`i (May Allah be pleased with him) reported: A woman from the tribe Juhainah came to Messenger of Allah (PBUH) while she was pregnant from (Zina) adultery and said to him: “O Messenger of Allah! I have committed an offense liable to Hadd (prescribed punishment), so exact the execution of the sentence.” Messenger of Allah (PBUH) called her guardian and said to him, “Treat her kindly. Bring her to me after the delivery of the child.” That man complied with the orders. At last the Prophet (PBUH) commanded to carry out the sentence. Her clothes were secured around her and she was stoned to death. The Prophet (PBUH) led her funeral prayers. `Umar submitted: “O Messenger of Allah! She committed Zina and you have performed funeral prayer for her?” He replied, “Verily, she made repentance which would suffice for seventy of the people of Al-Madinah if it is divided among them. Can there be any higher degree of repentance than that she sacrificed her life voluntarily to win the Pleasure of Allah, the Exalted?”[Muslim].

Commentary: This Hadith highlights the following five points:

1. It confirms the validity of the punishment of Rajm for the adulterer, that is to say that he should be stoned to death.

2. The merit of sincere pardon.

3.The description of fear of Allah as well as of accountability on the Day of Resurrection by the Prophet’s Companions, and their preference for punishment of sins in this world rather than in the Hereafter.

4. It is permissible to perform the funeral prayer of one who has been guilty of major sins, provided he has not been taking them as lawful because in that case there is danger of disbelief…

5. A pregnant woman cannot be punished with Rajam until she gives birth to the child and the period specified for suckling the baby is completed.

23. Ibn ‘Abbas and Anas bin Malik (May Allah be pleased with them) reported: Messenger of Allah (PBUH) said, “If a son of Adam were to own a valley full of gold, he would desire to have two. Nothing can fill his mouth except the earth (of the grave). Allah turns with mercy to him who turns to Him in repentance”. [Al-Bukhari and Muslim].

Commentary:

1. This Hadith deals with man’s greed and his lust for material wealth. Only the person who has a perfect Faith can save himself from it.

24. Abu Hurairah (May Allah be pleased with him) reported: Messenger of Allah (PBUH) said, “Allah, the Exalted, smiles at two men, one of them killed the other and both will enter Jannah. The first is killed by the other while he is fighting in the Cause of Allah, and thereafter Allah will turn in mercy to the second and guide him to accept Islam and then he dies as a Shaheed (martyr) fighting in the Cause of Allah.”[Al-Bukhari and Muslim]

Commentary:

1. Even the greatest sins, including those which one has committed before embracing Islam, are forgiven by repentance.

2. Smiling is also one of the Attributes of Allah, although we are unaware of the nature of it.

[Excerpted from Riyad Us Saliheen via Holy Heart.]

Forgiveness Despite Repeated Sins

Forgiveness Despite Repeated Sins

 

Daud Matthews 

 

May Allah guide all of us to the truth , and help us to serve Him , amen, ya Rabbal A’lamin.

 

Concerning forgiveness, Allah emphasizes His generosity and kindness, in that He forgives whoever repents to Him from whatever evil they commit:

 

“If any one does evil or wrongs his own soul but afterwards seeks God’s forgiveness, he will find God Oft-forgiving, Most Merciful.”  [Surah 4 Verse 110]

 

Ibn Abbas commented about this verse saying that Allah informs His servants of His forgiveness, forbearing generosity and expansive mercy. So, whoever commits a sin, whether major or minor, ‘but afterwards seeks Allah’s forgiveness, he will find Allah Oft-forgiving, Most Merciful’ even if his sins were greater than the heavens, the earth and the mountains.

 

It is also narrated by Ahmad that Abu Bakar said that Prophet Muhammad (pbuh) said:

 

‘No Muslim commits a sin and then performs ablution, prays two raka’ahs and begs Allah for forgiveness for that sin, but He forgives him.’

 

If a believer makes mistakes, and we all do, we have to offer sincere repentance to be entitled to forgiveness. In Islam, sincere repentance is known as Tawbah. This requires us to;

 

•              Recognize and admit we have made a mistake

 

•              Ask forgiveness from Allah and if the sin was against a person, we have to ask forgiveness from that person also

 

•              We try to atone for the sin we have done if possible, by for example, returning money if we had stolen it

 

•              We make the intention never to do the sin again

 

We are told many times in the Qur’an that Allah is the Oft-returning, Most Merciful. We understand from this that Allah is waiting for us to turn to Him in sincere repentance. If we are sincere, then Allah will have mercy on us.

 

We are also advised to ‘follow a bad deed with a good deed’. This means, as soon as we realize we have done something wrong, we should immediately try to do something good.

 

We should try to maintain the five times daily prayer, solat. This builds our relationship with Allah. During the prayer we recite the Fatihah in which we ask Allah for guidance. In a hadith Qudsi (conversation between Allah and His Prophet which is not part of Qur’an), it is explained that the prayer is divided into two parts, part is for Allah and part is for the worshipper. Allah promises to give the worshipper what s/he asks for – guidance! It is also necessary to read the Qur’an to understand and implement this guidance from Allah in our daily lives.

 

Both Sahih Bukhari and Sahih Muslim record the hadith of Abu Sa’id (may Allah be pleased with him) that Prophet Muhammad (pbuh) told about the man who killed ninety-nine people. Later on, he regretted it and asked a worshipper, among the Children of Israel, whether he could repent. This worshiper told him no! So, he killed him, thus, completing one hundred. Then he asked one of their scholars whether he could repent. He said: ‘What is stopping you from repenting?’

 

Then he told him to go to a town where Allah was worshipped. He set out for that town, but death came to him while he was on the road. The angels of mercy and the angels of punishment disputed over him. So Allah commanded them to measure the distance between the two towns, and the place where he died. Whichever (town) he was closer to, when he died, was the one to which he belonged. They found he was closer to the town he was heading for. Thus, the angels of mercy took him. It was said that when he was dying, he moved himself – towards that town – while Allah commanded the good town to move closer to him and the other town to move away.

 

On the other hand, Al-Bukhari recorded that Ibn Abbas said that some of the people of shirik (associating partners with Allah) killed many people and committed zina, (illegal sexual acts) to a great extent. they came to Muhammad (pbuh) and said: ‘What you are saying and calling us to is good; if only you could tell us that there is an expiation (way of making amends) for what we have done.’ Then, the following verses were revealed:

 

“Those who, when they spend, are not extravagant and not niggardly, but hold a just (balance) between those (extremes); Those who invoke not, with God, any other god, nor slay such life as God has made sacred except for just cause, nor commit fornication; – and any that does this (not only) meets punishment.(But) the Penalty on the Day of Judgment will be doubled to him, and he will dwell therein in ignominy,- Unless he repents, believes, and works righteous deeds, for God will change the evil of such persons into good, and God is Oft-Forgiving, Most Merciful,” [Surah 25 Verses 67 – 70]

 

“Say: “O my Servants who have transgressed against their souls! Despair not of the Mercy of God: for God forgives all sins: for He is Oft-Forgiving, Most Merciful. “Turn ye to our Lord (in repentance) and bow to His (Will), before the Penalty comes on you: after that ye shall not be helped.” [Surah 39 Verses 53 – 54]

 

We can understand from what has been said here that Allah forgives all sins provided that a person repents. Additionally, one must not despair of the mercy of Allah, even if their sins are many and great, for the door of repentance and mercy is expansive.

 

“Know they not that God doth accept repentance from His votaries and receives their gifts of charity, and that God is verily He, the Oft-Returning, Most Merciful?” [Surah 9 Verse 104]

 

While we are still able to perform actions, it is never too late to turn to Allah. When we do, we should try to live as Muslims, that is, fulfilling all out obligations as Muslims. As our iman (faith) increases, so our knowledge, understanding and practicing of Islam improves, insya’ Allah.

 

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