MIND-CONTROL the essence of GOD-REALISATION in AYAPPAN WORSHIP
-by Madawan A. Nair
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"The mind (citta) is unsubstantial.....essentially it is the apparent sequence of thoughts issuing out from the Supreme Consciousness within us. Its existence is imaginary. Yet it thrives, due to the merit of Consciousness (the cit). If it takes to the thought and contemplation on Oneness, which is the true nature of Pure Consciousness, verily it becomes the eternal brilliance"
- Quietitude of the Mind (Swami Bhoomananda Tirtha)
In any form of worship, the focal point is the mind and the restraint of it from delving excessively in limbo. This is no different in Ayappan worship. The 48 days of fast and austerities plus continence are in fact to restrain the mind and direct the same inwards to its origin. To facilitate this exercise, the necessity of a gurusamy is emphasized in Ayappan worship. The gurusamy is in actuality a facilitator, helping the devotees all all times to direct their minds inwards to come in contact with the Oneness within and without. To be able to rise up to the level of a gurusamy it is indeed necesary that that person has himself been able to restrain his mind to an extent from its rovings particularly from the mundane yearnings of Kama, Krodha, Lobha, Moha, Maltsalya, Asuya and Dhumb.. Sri Ramachandra Prabhu had sages Vasistha and Visvamitra as gurus, to Hanuman Sri Ramacahmdra Prabhu was his guru. For Arjuna the guru was Krishna Himself and Swami Ayappan also had his guru. All these great personalities have had excellent gurus who were untouched by the drawings of money, fame and greed.
Query :
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Can that be said of today's gurusamis ? Most of them beguile the public by looking holy and silent. Holy with the sandal paste and vibhuti so that they look different from tour-guides and organisers which they functionally really are. Silent, because they do not hold the answers to your questions. Just ask them about the philosophy (tatva) behind the18 steps and you shall be baffled by their answers. Ask them how come at the Achan kovil Ayappan temple, He is prayed together with his two wives - Poorna and Pushkala. Ayappan is also said to have a son named Swathihan. On one hand he is a brahmachari and yet at the Achan kovil , He is prayed as a grahastami. Most of them delve into the ritualistic prayers which any other person down the street can perform and recite the standard 108 verses and songs pertaining to the 18 steps. Harivarsanam is being sung as a rhetoric but what does it mean ? Challenge your gurusamis - remember your greatest guru is YOU Yourself. Swami Vivekananda has said thus:
"THE VEDAS CANNOT SHOW YOU BRAHMAN. YOU ARE THAT ALREADY"
These days, the proliferation of bogus Ayappan gurusamis seem to dominate our land. Many are siphoned off their hard-earned money with promises of excellent darshan and blessings. At the end of the day, they come home after having done dizzy, super-speed visits encompassing temples like Guruvayur, Chottanikara, Kodungkulur etc., etc. These cheated devotees have hardly been led to visit the surrounding shrines at Sabarimala itself. What more, extra charges are levied for the makkara jothi darshanam. The Kerala State Government and the Travancore Devaswom Board has already confessed that the Makkara villaku is the light from the burning of prayer materials at the Ponnambala hill. The Makara jothi is the celestial star which appears without fail each year. Just this piece of information is sufficient to dispel the waste of money and the build-up of teeming thousands up the Sabarimala - not to mention the stampede and deaths. However, just how many gurusamis tell their disciples of this truth ?
On the battleground of Kurushetra, when the roving mind of Arjuna was energised and taunted by the need to wreak death upon his own cousins and grandfather - he lost his equilibrium and composure. His guru, Krishna Himself, calmed his mind and helped it be restrained by pointing to the illusiveness of relationships and how we attempt to built such relationship on a base that in itself is temporary (ie our lives).
It has been stated several times that the whisperings of the Oneness can be felt when you restrain your roving mind and direct it towards God Himself. When Meppathur Bhattatiri, was seeking an answer as to how he ought to start the writing of the famed Narayeeniyam, the answer came from elsewhere - ie to start with the Matcha (namely the Fish avatar). While writing the verse "Prahaladha priyan" in the Narayeeniyam seated before the sanctum sanctoram , it is said , an instructive voice came from within it retorting the words "Bhaktajana priya" ( lover of devotees) and not Prahaldha priyan.
All the fasts/continence, bhajans, satsangs, the yatra and everything else in Ayappan worship is to attain this purpose only - the emasculation of the roving mind ! By engaging the intelligence (buddhi) in reasoning (vicara) and discrimination (viveka). It is certainly not easy but with vairagya (determination) and over time this can be achieved. Humility, love for others and tolerance is invoked in the realised WHILE pride, selfishness and greed eat the charlatan.
In the Chapter 13 of St. Matthew, Christ speaks thus to his disciples:
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" But blessed are your eyes, for they see: and your ears for they hear ."
" For verily I say unto you, That many prophets and righteous men have desired
to see those thing which ye see, and have not seen them; and to hear those things
which ye hear, and have not heard them. "
In Chapter 18 of the same book, Christ says:
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" And said, Verily I say unto you.Except ye be converted, and become as little children ye shall not enter into the kingdom of heaven."
"Whosoever therefore shall humble himself as his little child, the same is greatest in the kingdom of heaven."
About the mind (citta) Christ says thus:
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" For out of the heart proceed evil thoughts, murders,adulteries, fornications, thefts, false witness, blasphemies :
These are the things that defile a man : but to eat with unwashen hands defileth not a man ."
In THE FORTY VERSES ON REALITY - Swami Ramana Maharishi states thus of the heart and mind as thus :
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" If REALITY did not exist, could there be any knowledge of existence? Free from all thoughts, Reality abides in the HEART, the source of all thoughts. It is therefore called the HEART. How then is one to contemplate ? To be as it is in the HEART, is its contemplation."
" The world is nothing more than an embodiment of the objects perceived by the five-senses.Since, through these five-sense-organs, a single mind perceives the world, the world is nothing but the mind.Apart from the mind can there be a world?"
Ayappan yatra is a tapo-yatra i.e a yatra filled with tapas. All the tapas (fast,celibacy,economy of words and thought etc ) are designed to subdue your senses. What happens, if you truly and diligently do this? As Raman Maharishi says :
"The Divine gives light to the mind and shines within it. Except by turning the mind inward
and fixing it in the Divine, there is no other way to know Him through the mind"
Hence, it is this action of turning the mind on the Divine which is the quintessence of the Ayappan tapo-yatra. The 48 days of fast and the attendant observance of a strict regimen of life transforms, at least momentarily, a mundane man into a sanyasi of sorts. With the mindset of a sanyasi and his senses weakened together with the imbibing of the greatness of the Almighty ( in the aspect of Ayappan) he becomes a observer of his inside. This turning towards his inside weakens his ego and his tenacious grip on the externals through the tentacles of his senses weaken- over time it is said that he shall see that one Reality manifests in the three fundamentals of -the world, soul and God. A hypothetical 18 years of sincerely performed yatra , it is said, generally sufficient to attain this state. However, through the dint of good karmas, samaskaras and vasanas some attain this realisation faster . However, once again, are your gurusamis facilitative of this inward transmisssion of directing your minds to the eternal Divinity inside ?
HARIVARASANAM (translated in English)
HARI VARAASANAM
The one who is seated in the pose of a lion
The one who with His beauty attracts the entire world
The one who destroys the evil of lust, anger, greed, attachment, ego and arrogance
The One who forever dances happily in the hearts of His devotees
The One who has appeared as the son of Hari and Hara
I SALUTE THEE.
The one who is moved by the bhajans sung by His devotees
The One who guards the well-being of all His Devotees
The One who dances in the hearts of His devotees
The One who radiates like the red sky at dawn
The one who is the master of all the living things
I SALUTE THEE
He One who fulfills the desires of His Loving devotees
The One who appears as the Life Force of His devotees
The One who fulfills the wishes of those who pray to Him
The One who appreciates the keertans sung by His Devotees
I SURRENDER TO THEE , OH SON OF HARI AND HARA
The One who is seated on the Horse
The One who is the personification of beauty
The One who uses His maze as His weapon
The One who is extolled n the Vedas
The One who grants all blessings to His Devotees
The One who appreciates the bhajans sung by His devotees
I SURRENDER TO THEE , OH SON OF HARI AND HARA
The One who is worshipped in all the three worlds
The One who is created by Vishnu and Siva
The One who radiates with divine body
The One who is worshipped by the Devas
The One who fulfills the wishes of His devotees
I SURRENDER TO THEE OH SON OF HARI AND HARA
The One who destroys the fear of worldy problems
The One who involves Himself in the devotion of His devotees
The One who by His beauty attracts everyone
The One who is adorned with a lot of jewellery
The One who uses the white elephant as His divine vehicle
I SURRENDER TO THEE OH SON OF HARI AND HARA
The One who smiles compassionately
The One who is bathed in divine sandalwood
The One with a divine body
The One who appears as the lion to those who show the arrogance of an elephant
The One who uses the horse as His vehicle
I SURRENDER TO THEE OH SON OF HARI AND HARA
The One who is loving towards the devotees who surrender to Him
The One who grants all our wishes
The One who is armed with all the Vedas
The One who is celebrated with devotional songs
I SURRENEDR TO THEE, OH SON OF HARI AND HARA
To be continued ......
Why the mala in Sabarimala worship ?
Why the irrumudi is a peculiar facet in this kind of worship?
Harivarasanam and its meaning in English
Loka Veeram and its meaning in English
Friday, March 12, 2010
Saturday, December 5, 2009
“ Marriage is between one man and one woman to the exclusion of others”. ( Hyde v Hyde ) Discuss whether this definition is still relevant
BY: MADAWAN A. NAIR
BEcons(Hons)Mal,LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA
1. INTRODUCTION
1.1 The waning significance of marriage
BEcons(Hons)Mal,LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA
1. INTRODUCTION
1.1 The waning significance of marriage
Marriage which was once an institution ordained and blessed by our value systems and religions has today been relegated to very low esteem. The enchantment of marriage, the associated thrill , anticipation and scintillating anxiety are today fast disappearing. Marriage was the carte blanche for sex but on the converse sex is the prelude to marriage today. Thus, marriage has become the brunt of coffee-shop jokes and the subject has its own satirical brand of quotable quotes such as :
The difficulty with marriage is that we fall in love with a personality but must live with a character - (Peter De Vire)
Marriage is the alliance of two people, one who never remembers birthdays and the other who never forgets them - (Ogden Nash)
Marriage is like a phone call in the night : first the ring then you wake up - (Evelyn Hendrickson).
Marriage is one subject on which all women agree and all man disagree. - (Oscar Wilde)
The quotation in the question is as regards a case in 1866 decided before Lord Penzance. It revolved primarily around the issue of dissolution of marriage on the grounds of adultery by the respondent (wife ). The couples were Mormons and the marriage between them was carried out in the Mormon church at Utah, USA. The petitioner (husband) later renounced the Mormon faith and was excommunicated while his wife was declared free to marry again and which she did with the co-respondent in Utah (Polygamy was practiced among Mormons in Utah). The petitioner (husband) later resumed his English domicile and filed the petition for divorce. However the petition was dismissed.
The logical consideration of the court was that it was not bothered upon the rights of succession or the legitimacy of polygamous marriage among Mormons in Utah BUT THAT in the law of England such unions are not recognized per se. Thus, it is humbly opined that the word “unions”, using the literal construction test and juxtaposed against the period of time it was used, makes reference to polygamous marriage only.
1.2 The salient features in Hyde v Hyde
The decision in Hyde v Hyde highlighted features that were reflective of the trend of thought, customs and religious convictions that prevailed and ruled that period of time. Summarily, the key features highlighted are as ensues:
a). Marriage was considered to be an INSTITUITION either religious
or civil in nature and transcended a mere contract.
b). Marriage creates mutual rights and obligations and confers a
status.
c). The status conferred is that of HUSBAND and WIFE which was
recognized throughout Christendom.
d). That status of HUSBAND and WIFE creates a spectrum of rights and obligations upon their off-springs.
e). Marriage is a UNION for LIFE – “till death do us apart”
f). Marriage was taken to mean monogamous marriage and polygamy was absolutely repulsive and cursed.
The phraseology in the quotation “to the exclusion of others”, it is surmised, is meant to exclude others i.e more than one man or one woman into the matrix of marriage. The decision itself has not expressly stated this but intuitively based on the thrust of the issue on hand theni.e divorce based on adultery the phraseology could not have meant anything else.
2. THE ROLE OF HYDE v HYDE IN THE PRESENT ERA
Juxtaposing the case law against the present bedrock of like events of the era would bring to surface several inherent deficiencies in the decision itself, let alone its relevancy in varied jurisdictions.
Firstly, Hyde v Hyde is certainly out of tune with our times . Marriage whilst still being viewed as an ideal relationship in the abstract is no longer viewed as essential, desirable or even practical in the 21st century. The traditional functions of families (such as sexual intimacy, parenting and companionship ) are no longer the exclusive domain of married couples.
In the present era, the tenacity and religious fervour for upholding moral values is fading. It is fashionable and a mere social status to appear religious. Marriage for legitimizing sex is now an archaic phrase. The new-age mantra is “Sex without strings, relationships without rings”.
Thirdly, Hyde v Hyde has been overtly over-enthusiastic about life-
long associations. Presently, serial monogamy is slowly replacing marriage for life. Essentially it is still marriage of one man with one woman but certainly it is “not union for life.”
Undoubtedly, the case law has not been predictive of the possible future evolutions and transformation in human associations. Today we witness a reinvention of the concept of marriage as propounded in Hyde v Hyde. Governments are being tested to their limits by street-marches of gay and lesbian associations demanding recognition premised upon Human Rights ; for fear that rejection of recognition would translate itself in dismal electoral vote counts these governments are indecisive. Governments in countries like Australia and New Zealand have been adoptive of changes and are giving away rights to other relationships as well.
3. PERPLEXING QUESTIONS LEFT UNANSWERED
It is submitted that the decision in Hyde v Hyde is grossly at variance in terms of relevancy with the present and imminent backdrop of societal development.
The dissenting judgement of Martens J in the case of Caroline Cosssey and his view thus :
“..marriage is far more than a union which legitimates sexual intercourse and aims at procreating.”
is truly reflective of the life-style today. Did Stephen Hawkings, the holder of the Lucasian chair and deemed the greatest physicist after Einstein marry for procreation ? He could hardly move his limbs apart from his mouth and head and spoke through a computerized voice synthesizer.
Today the legislature in UK and Europe are dumbfounded with onslaughts of calls for social reforms pertaining to marriage. In 2002, the ECHR in Goodwin v The United Kingdom; I v The United Kingdom criticized the UK government for its lack of action. It found against the UK and held that the rights of two transgendered people had been breached under Articles 8 and 2 of the ECHR 1950. Possibly inspired by the criticism Thorpe LJ in Bellinger v Bellinger made his famous dissenting judgment which loftily threw aside Corbett v Corbett’s emphasis on chromosomal, gonadal aand genital considerations. The psychological factor is today being given credence. Sadly, Hyde v Hyde’s decision did not encompass this development.
The world of scientific development is fast developing .The Human Genome Project has been completed successfully and this gives scientists all over to find alternatives to the real things – artificial joints have replaced original joints afflicted with osteoarthritis, the wombs of surrogate mothers have become the labyrinth of growth of foetus conceived by different heterosexuals and the list goes on. Artificial Intelligence is now the norm and in years to come probably a robotic female or a male replete with all the natural sexual attributes. The growth in this area is already conceived and scientists are working on to create this breakthrough. In other words, humanoid robots may soon become spouses and mates .
4. THE RELEVANCY OF HYDE V HYDE IN VARIED JURISDICTIONS.
4.1 In Malaysia – pre 1982
The Pre-1982 was chaotic as far as matrimonial law in Malaysia is concerned. There was a plethora of laws applicable to Non-Muslims e.g the Marriage Ordinance 1952, Christian Marriage Ordinance 1956 and various other customary laws. As for the Muslims, they were untouched by the Civil Law and their position post 1982 remained unchanged.
The position of the Muslims
As for the Muslims, marriage was regarded as tie which is pure and honourable. It is tenaciously believed that God created wives for men to enable them to find happiness with each other and to create ties of love and progeny. The marriage begins with a formal request from a man for the hand of a woman who must be single, divorced or widowed ( i,e free from ties with other men). Some of the conditions for marriage are :
a). Marriage must be made between a man and a woman. (ie de facto marriages were shunned in toto ).
b). The father of the bride must be present, necessarily, to give
away her in most cases.
c). Two witnesses to the marriage must be present.
d). Intention to marry must be articulated by the man and the
bride must consent.
A woman who is already married is not allowed to marry again while the marriage is subsisting and where a marriage is terminated by divorce or death of the husband, the wife is only allowed to marry after a compulsory period of waiting called the iddah.
Under the Muslim Law, a male is permitted to marry more than one wife up to a maximum of four, provided he is ABLE TO TREAT his wives EQUALLY ( viewed as an open carte blanche to men in indulging in their marriage commitments by woman. This fact certainly is not in conformity with Hyde v .Hyde. The marriage also does not affect the personal status of the women – she is free to own her own property and all monies earned belong to her. There is an important sanction namely that the marriage cannot be solemnized within the prohibited degrees of consanguinity. A problem however exists, what if the bride or groom was the resultant product of a known mother and unknown father in the primal form eg sperm from the sperm bank or human clone.
The position of the Chinese .
The status of women among the Chinese changes with marriage i.e
“ when you are a child you obey your father, when you are married you
obey your husband, in old age you obey your son.”
The women in Chinese homes therefore never had a position of their
own or a position independent of a male.
Customary marriages among the Chinese is essentially polygamous eg the “tsai” (first wife is superior to the “tsip” (secondary wives) and rights Re Lao Leong An (1893) 1 SSLR 1. Polygamy was essentially practiced because it was important among the Chinese that a marriage begets a male child who carries on his father’s name into progeny. The children of daughter only carry the names of their husbands. This aspect is definitely not in concord with Hyde v Hyde especially the main theme of marriage between one man and one woman.
Under the Registration of Marriage Ordinance1952, a couple could register only as a help in proving marriage and nothing else . The form or status of marriage remained unaltered.
The position of the Indians
Customary marriages among the Indians (except for the Ceylon and Tamil Hindus) were polygamous. This, like that for Chinese, certainly is at variance with the position envisaged in Hyde v Hyde.
The position of women, among the Indians, is basically one of subordination. The Manu- Samhitta , a set of old books, states thus:
“women must be honoured by those who desire their welfare and where women were not honoured, no sacred rite yields rewards, that where female relatives live in sorrow the family soon perishes and hence men who seek welfare should always honour women”
And yet,
‘day and night women must be kept in dependence by males of their families..her father protects her in childhood, her husband protects her in youth and her sons protect her in old age. A woman is never fit for independence.”
However, in the home, the woman is accorded as indispensable place especially in the preservation of traditions, values and religions. As a practice, they are ornamental display of their husbands-not to decry his shortcomings in public and to uphold the dignity of the husband’s home in high regard at all times.
4.2. The post 1982 era.
The Law Reform (Marriage & Divorces) Act 1982 introduced new law of marriage and divorce especially for non-Muslims. It swept aside the old customary laws , save for Muslims, natives of Sabah and Sarawak and aborigines of Malaya and introduced uniformity. Viewed from a controversial angle, the Indians and Chinese have been robbed of their cultural vestiges with the sweep of a pen. Cultural practices in terms of marriage brought over as vestiges from their lands are no longer within their reach. This certainly is an insidious move by the law-makers of this country.
The Law Reform (Marriage & Divorces) Act 1982 made provisions for the registration of marriages prior to 1.3.1982. However, failure to comply to do so do not invalidate such marriages. The Act boldly abolished Polygamy :s.5(4) Law Reform (Marriage & Divorces) Act 1982. The law also seem to out-law all classes of marriage which possibly includes the common law marriages : s.69(a) Law Reform (Marriage & Divorces) Act 1982 and s.494 Penal Code. A point to note here is that the ghost of Hyde v Hyde can be seen to reappear with the invocation of the Law Reform (Marriage & Divorces) Act 1982.
Furthermore, s.11 of the Act prescribes the prohibited degrees of sanguinity (impliedly this forbids the reception of spouses hailing from unknown origins in test-tubes and sperm banks where the sources are guarded under strict confidentiality). The Act brought in bold exhortations of consent of spouses above 21 years of age . If they are under that age group apart from this the consent of parents were also required. Nevertheless, dispensation of this consent requirement was possible but only with the court’s intervention alone.
Section 69(d) of the Act is suggestive that the parties to marriage must be male and female honouring Hyde v Hyde. In a way, the chromosomal, gonadal and genitalia factors considered by Omrod J in Corbett v Corbett (otherwise Ashley) still hold sway – discounting the reception of marriage between transsexuals and homosexuals etc ).
4.3. What about cohabitation ?
There are indications of the existence of pre and extra marital cohabitation among the Chinese and Tamil Indians. In 1960, a study of the Hindu Tamil Indians of the Pan Malaya Rubber Plantation found that :
- Cohabitation (certtu-k-kolu-tal) prevailed as unions of convenience and cooperation of the opposite sex among early migrants.
- Among the Chinese, cohabitation is well-known. In several cases, the courts even held that such unions may give rise to the presumption f marriage (man and tsip reputation). However, after the Law Reform (Marriage & Divorces) Act 1982, the “man and tsip “ relationship isn’t recognised to be sufficient to constitute marriage and only monogamous marriages are recognized in law.
Apart from this, there is nothing in the Law Reform (Marriage & Divorces) Act 1982 to prohibit and punish cohabitation expressly.
Among the Muslims, there are express statutory provisions in State enactments which prohibit cohabitation, fornication, illicit sexual intercourse and khalwat- making them offences punishable with imprisonment and/or fine.
Together with this and the position of Islam as the religion of the Federation (Article 3(1) of the Federal Constitution) and the ruling party’s commitment towards infusing Islamic values wherever possible.
Hence, it may be safely assumed that marriage as envisaged by Hyde v Hyde in Malaysia shall remain relevant for the present. The strong cultural base and weak footing of Human Rights sentiment here shall protect the Marriage Institution.
However, de facto relations, cohabitation, union among same sexes shall also remain staggering alongside the mainstream recognition of marriage as between a man and woman only.
Hence, as far as the Chinese and Indians in Malaysia ( i.e after 1982) are concerned, Hyde v Hyde’ s contention as per the quotation in the question is relevant. However, as for the Muslims in Malaysia marriage need not be necessarily be between one man and one woman. It can be polygamous provided it is within the prescribed parameters as circumscribed by Islamic teachings. The Muslim jurists have laid down the following conditions if someone wants to take more than one wife:
(i). He should have sufficient financial resources to look after the needs of the additional wives that he has taken.
(ii). He must do equal justice to them all.Each wife should be treated equally as far as the fulfillment of their conjugal and other rights is concerned.
Hence, with the Muslims, Hyde v Hyde is of little significance.
4.4 Relevancy of Hyde v Hyde in the United Kingdom.
The UK “state of affairs” under which Hyde v Hyde was decided has been under tremendous changes and is currently facing an onslaught of challenges.
Fundamentally, marriage is still recognised as being between a man and a woman eg; section 11(b) Matrimonial Causes Act 1973 makes second marriage void.
The religious fervor of Christianity is a strong bulwark against impending ramifications . The following exhortations with Christian sentiment deeply embedded in them still have its influence . For example :
“You are pronounced man and wife still death do you apart” is still the sanctimonious prelude before the Church bell and the much awaited frenzied utterance by the Pastor , “ you may kiss your bride now ” begin.
The denouncements of the sins of the flesh in the New Testament such as :
“Thou shalt not covet thy neighbour’s wife”
“Anyone who looketh on a woman to lust after her committed
adultery with her already in the heart”
still reverberates in the Bible study classes in the perimeters of the churches.
Couple with these, the confinement of marriage to certain permitted degrees (First Schedule of Marriage Act 1949, Children Act 1975 and Prohibited Degree Relationship Act 1986 ) still remain relevant in UK.
4.5 The changing panorama of events in the matrimonial front.
Legal exclusion from the status of marriage either because of sexual orientation, gender categorization, or lack of compliance with formalities has become the norm these days. It has brought about a wave of new social and legal thinking. The social thinking and the resultant action certainly transcend the Hyde v Hyde’s conception of what marriage is or ought to be. This is apparent in three different aspects.
Transexuals
Bellinger v Bellinger has brought about a new line of thought - in terms of viewing transexuals.. Even though Mrs Bellinger’s application was only for a declaration that their marriage of 20 years was valid because she was female for the purposes of section 11 ( c ) Matrimonial Causes Act 1973, her case has driven home the point that judicial discretion is a valid means of legal change. In that case, Thorpe J (in his dissenting judgment) drew attention to judgments of the European Court of Human Rights which pressed or the need for law regarding transexuals to be kept under review in the light of the new scientific developments. Another inroad into what Hyde v Hyde would have abnoxious and unsanctimonious.
Presumption of marriage and cohabitation.
The concept of presumption of marriage where a man and a woman have cohabited for such a length of time has a long history but seldom pleaded. In Pazpena De Vire v Pazpena De Vire in 2001, such a long cohabitation was deemed to be marriage. Here therefore, by dint of the legal tool of presumption, a cohabitation can metamorphosize into marriage.
Gender Recognition Act 2004 and Civil Partnership Act 2004.
Once a gender recognition certificate is obtained from the Gender Recognition Panel, then for all legal purposes, the applicant shall be treated as per their acquired gender than their birth certificate gender. The Gender Recognition Act 2004 has provided this novel facility.
Presently, same-sex couples can enter into quasi-marriage and be regarded as each other’s family. The Civil Partnership Act 2004 permits this. Transgendered persons , who have obtained gender recognition certificates from the Gender Recognition Panel, may enter into a civil partnership with member of the same sex to that of their newly acquired gender. The parties only need to have the relevant mental and legal capacity and must not be within prohibited degrees of kindred.
Hence, with all these ramificatiions and more knocking vociferously at the doors of the legal monolith of UK , it is indeed questionable as to whether the quotation that “ Marriage is between one man and one woman to the exclusion of others” as in Hyde v Hyde still maintains its relevancy in there – incidentally from where it had its genesis !
4.6 Relevancy of Hyde v Hyde in the New Zealand.
Sections 29, 30 and 31(1) of the Marriage Act 1955 makes a marriage void ibinitio if one of the parties to the marriage is already married thereby indicating the upholding of monogamous marriages.
However, several developments have made the union between man and woman a questionable aspect thereby rendering the quotation in Hyde v Hyde as irrelevant as far as New Zealand is concerned.
In 1995, in the New Zealand case of AG v Otahuhu Family Court , a transsexual person’s reassigned sex was recognized for the purpose of validating a marriage as opposed to Bellinger v Bellinger.
The ratio being :
“ if society allows such a person to undergo therapy and surgery in order to fulfill that desire, then it ought to allow such a persons to function as fully as possible in their reassigned sex.”
4.7 The fast changing family laws in New Zealand.
Initially, New Zealand had eschewed gay marriage just like most countries in Europe. However, later it opted for the less arguable but easy to sell legal model in guise of Civil Unions. Civil Unions in New Zealand is available to both heterosexuals and homosexuals parties and it mirrors that for marriages. Thus, there are similar rule for invalidity for example need for consent and prohibition within certain degrees of relationship. Also the rule for dissolution of marriage, i.e the 2 years living apart requirement, is also available in civil unions. Pertinently, a couple can convert from marriage into civil unions or vice versa ( if heterosexual ).
Same rights as regards immigration, next of kin status, social welfare, matrimonial property as in marriages are extended to civil unions as well.
Hence, there is growing trend that many opt for civil unions because the religious overtones implied or claimed for the word “ marriage” can be avoided.
It is therefore, abundantly clear that , as far as New Zealand is concerned it has completely freed itself from the shackles of the quotation in Hyde v Hyde. It stands foremost in bringing about changes and ramifications that have reverberating impact, in one way or another , in the other countries with allied problems, culture and the need to reform.
5. CONCLUSSION.
The decision in Hyde v Hyde, truly a landmark legal piece, has withstood the test of time over the eons. However, with the recent spate of demands for change under Human Rights and humanity plus the changes in marital relationship, its lustre is slowly being lost as can be seen in Malaysia, United Kingdom and New Zealand. On one hand the institution of marriage as conceived of in the past has metamorphosed into a plethora of varied hybrids . Yet on the other, civil unions and civil partnerships are creating institutions in their own accord.
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Bibliography
1. Cohabitation, Marriage and the Law – Social Change and Legal Reform
in the 21st Century by Anne Barlow, Simon Duncan, Grace James and Alison Park.
2. Catholic Education Resource Center – Robert P. George
3. The Economist 6 January 2001
4. Landmark Family Legislation by Bill Atkin in International Survey of Family Law.,2006
5. Family Law in Malaysia & Singapore – Ahmad Ibrahim
6. Family and Divorce in Malaysia (1983) 1 CLJ 220 by Women Lawyers’ Association
7. Women in Shariah by Abdul Rahman I Doi
8. Reshaping Marriage and the Family – The GRA 2004 and the CPA 2004 by Mary Welstead
9. Catholic Education Resource Centre – Robert P. George
10. Family Law in Malaysia – Mimi Kamariah Majid
11. A History of the Wife by Marilyn Yalom Harper Collins
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The difficulty with marriage is that we fall in love with a personality but must live with a character - (Peter De Vire)
Marriage is the alliance of two people, one who never remembers birthdays and the other who never forgets them - (Ogden Nash)
Marriage is like a phone call in the night : first the ring then you wake up - (Evelyn Hendrickson).
Marriage is one subject on which all women agree and all man disagree. - (Oscar Wilde)
The quotation in the question is as regards a case in 1866 decided before Lord Penzance. It revolved primarily around the issue of dissolution of marriage on the grounds of adultery by the respondent (wife ). The couples were Mormons and the marriage between them was carried out in the Mormon church at Utah, USA. The petitioner (husband) later renounced the Mormon faith and was excommunicated while his wife was declared free to marry again and which she did with the co-respondent in Utah (Polygamy was practiced among Mormons in Utah). The petitioner (husband) later resumed his English domicile and filed the petition for divorce. However the petition was dismissed.
The logical consideration of the court was that it was not bothered upon the rights of succession or the legitimacy of polygamous marriage among Mormons in Utah BUT THAT in the law of England such unions are not recognized per se. Thus, it is humbly opined that the word “unions”, using the literal construction test and juxtaposed against the period of time it was used, makes reference to polygamous marriage only.
1.2 The salient features in Hyde v Hyde
The decision in Hyde v Hyde highlighted features that were reflective of the trend of thought, customs and religious convictions that prevailed and ruled that period of time. Summarily, the key features highlighted are as ensues:
a). Marriage was considered to be an INSTITUITION either religious
or civil in nature and transcended a mere contract.
b). Marriage creates mutual rights and obligations and confers a
status.
c). The status conferred is that of HUSBAND and WIFE which was
recognized throughout Christendom.
d). That status of HUSBAND and WIFE creates a spectrum of rights and obligations upon their off-springs.
e). Marriage is a UNION for LIFE – “till death do us apart”
f). Marriage was taken to mean monogamous marriage and polygamy was absolutely repulsive and cursed.
The phraseology in the quotation “to the exclusion of others”, it is surmised, is meant to exclude others i.e more than one man or one woman into the matrix of marriage. The decision itself has not expressly stated this but intuitively based on the thrust of the issue on hand theni.e divorce based on adultery the phraseology could not have meant anything else.
2. THE ROLE OF HYDE v HYDE IN THE PRESENT ERA
Juxtaposing the case law against the present bedrock of like events of the era would bring to surface several inherent deficiencies in the decision itself, let alone its relevancy in varied jurisdictions.
Firstly, Hyde v Hyde is certainly out of tune with our times . Marriage whilst still being viewed as an ideal relationship in the abstract is no longer viewed as essential, desirable or even practical in the 21st century. The traditional functions of families (such as sexual intimacy, parenting and companionship ) are no longer the exclusive domain of married couples.
In the present era, the tenacity and religious fervour for upholding moral values is fading. It is fashionable and a mere social status to appear religious. Marriage for legitimizing sex is now an archaic phrase. The new-age mantra is “Sex without strings, relationships without rings”.
Thirdly, Hyde v Hyde has been overtly over-enthusiastic about life-
long associations. Presently, serial monogamy is slowly replacing marriage for life. Essentially it is still marriage of one man with one woman but certainly it is “not union for life.”
Undoubtedly, the case law has not been predictive of the possible future evolutions and transformation in human associations. Today we witness a reinvention of the concept of marriage as propounded in Hyde v Hyde. Governments are being tested to their limits by street-marches of gay and lesbian associations demanding recognition premised upon Human Rights ; for fear that rejection of recognition would translate itself in dismal electoral vote counts these governments are indecisive. Governments in countries like Australia and New Zealand have been adoptive of changes and are giving away rights to other relationships as well.
3. PERPLEXING QUESTIONS LEFT UNANSWERED
It is submitted that the decision in Hyde v Hyde is grossly at variance in terms of relevancy with the present and imminent backdrop of societal development.
The dissenting judgement of Martens J in the case of Caroline Cosssey and his view thus :
“..marriage is far more than a union which legitimates sexual intercourse and aims at procreating.”
is truly reflective of the life-style today. Did Stephen Hawkings, the holder of the Lucasian chair and deemed the greatest physicist after Einstein marry for procreation ? He could hardly move his limbs apart from his mouth and head and spoke through a computerized voice synthesizer.
Today the legislature in UK and Europe are dumbfounded with onslaughts of calls for social reforms pertaining to marriage. In 2002, the ECHR in Goodwin v The United Kingdom; I v The United Kingdom criticized the UK government for its lack of action. It found against the UK and held that the rights of two transgendered people had been breached under Articles 8 and 2 of the ECHR 1950. Possibly inspired by the criticism Thorpe LJ in Bellinger v Bellinger made his famous dissenting judgment which loftily threw aside Corbett v Corbett’s emphasis on chromosomal, gonadal aand genital considerations. The psychological factor is today being given credence. Sadly, Hyde v Hyde’s decision did not encompass this development.
The world of scientific development is fast developing .The Human Genome Project has been completed successfully and this gives scientists all over to find alternatives to the real things – artificial joints have replaced original joints afflicted with osteoarthritis, the wombs of surrogate mothers have become the labyrinth of growth of foetus conceived by different heterosexuals and the list goes on. Artificial Intelligence is now the norm and in years to come probably a robotic female or a male replete with all the natural sexual attributes. The growth in this area is already conceived and scientists are working on to create this breakthrough. In other words, humanoid robots may soon become spouses and mates .
4. THE RELEVANCY OF HYDE V HYDE IN VARIED JURISDICTIONS.
4.1 In Malaysia – pre 1982
The Pre-1982 was chaotic as far as matrimonial law in Malaysia is concerned. There was a plethora of laws applicable to Non-Muslims e.g the Marriage Ordinance 1952, Christian Marriage Ordinance 1956 and various other customary laws. As for the Muslims, they were untouched by the Civil Law and their position post 1982 remained unchanged.
The position of the Muslims
As for the Muslims, marriage was regarded as tie which is pure and honourable. It is tenaciously believed that God created wives for men to enable them to find happiness with each other and to create ties of love and progeny. The marriage begins with a formal request from a man for the hand of a woman who must be single, divorced or widowed ( i,e free from ties with other men). Some of the conditions for marriage are :
a). Marriage must be made between a man and a woman. (ie de facto marriages were shunned in toto ).
b). The father of the bride must be present, necessarily, to give
away her in most cases.
c). Two witnesses to the marriage must be present.
d). Intention to marry must be articulated by the man and the
bride must consent.
A woman who is already married is not allowed to marry again while the marriage is subsisting and where a marriage is terminated by divorce or death of the husband, the wife is only allowed to marry after a compulsory period of waiting called the iddah.
Under the Muslim Law, a male is permitted to marry more than one wife up to a maximum of four, provided he is ABLE TO TREAT his wives EQUALLY ( viewed as an open carte blanche to men in indulging in their marriage commitments by woman. This fact certainly is not in conformity with Hyde v .Hyde. The marriage also does not affect the personal status of the women – she is free to own her own property and all monies earned belong to her. There is an important sanction namely that the marriage cannot be solemnized within the prohibited degrees of consanguinity. A problem however exists, what if the bride or groom was the resultant product of a known mother and unknown father in the primal form eg sperm from the sperm bank or human clone.
The position of the Chinese .
The status of women among the Chinese changes with marriage i.e
“ when you are a child you obey your father, when you are married you
obey your husband, in old age you obey your son.”
The women in Chinese homes therefore never had a position of their
own or a position independent of a male.
Customary marriages among the Chinese is essentially polygamous eg the “tsai” (first wife is superior to the “tsip” (secondary wives) and rights Re Lao Leong An (1893) 1 SSLR 1. Polygamy was essentially practiced because it was important among the Chinese that a marriage begets a male child who carries on his father’s name into progeny. The children of daughter only carry the names of their husbands. This aspect is definitely not in concord with Hyde v Hyde especially the main theme of marriage between one man and one woman.
Under the Registration of Marriage Ordinance1952, a couple could register only as a help in proving marriage and nothing else . The form or status of marriage remained unaltered.
The position of the Indians
Customary marriages among the Indians (except for the Ceylon and Tamil Hindus) were polygamous. This, like that for Chinese, certainly is at variance with the position envisaged in Hyde v Hyde.
The position of women, among the Indians, is basically one of subordination. The Manu- Samhitta , a set of old books, states thus:
“women must be honoured by those who desire their welfare and where women were not honoured, no sacred rite yields rewards, that where female relatives live in sorrow the family soon perishes and hence men who seek welfare should always honour women”
And yet,
‘day and night women must be kept in dependence by males of their families..her father protects her in childhood, her husband protects her in youth and her sons protect her in old age. A woman is never fit for independence.”
However, in the home, the woman is accorded as indispensable place especially in the preservation of traditions, values and religions. As a practice, they are ornamental display of their husbands-not to decry his shortcomings in public and to uphold the dignity of the husband’s home in high regard at all times.
4.2. The post 1982 era.
The Law Reform (Marriage & Divorces) Act 1982 introduced new law of marriage and divorce especially for non-Muslims. It swept aside the old customary laws , save for Muslims, natives of Sabah and Sarawak and aborigines of Malaya and introduced uniformity. Viewed from a controversial angle, the Indians and Chinese have been robbed of their cultural vestiges with the sweep of a pen. Cultural practices in terms of marriage brought over as vestiges from their lands are no longer within their reach. This certainly is an insidious move by the law-makers of this country.
The Law Reform (Marriage & Divorces) Act 1982 made provisions for the registration of marriages prior to 1.3.1982. However, failure to comply to do so do not invalidate such marriages. The Act boldly abolished Polygamy :s.5(4) Law Reform (Marriage & Divorces) Act 1982. The law also seem to out-law all classes of marriage which possibly includes the common law marriages : s.69(a) Law Reform (Marriage & Divorces) Act 1982 and s.494 Penal Code. A point to note here is that the ghost of Hyde v Hyde can be seen to reappear with the invocation of the Law Reform (Marriage & Divorces) Act 1982.
Furthermore, s.11 of the Act prescribes the prohibited degrees of sanguinity (impliedly this forbids the reception of spouses hailing from unknown origins in test-tubes and sperm banks where the sources are guarded under strict confidentiality). The Act brought in bold exhortations of consent of spouses above 21 years of age . If they are under that age group apart from this the consent of parents were also required. Nevertheless, dispensation of this consent requirement was possible but only with the court’s intervention alone.
Section 69(d) of the Act is suggestive that the parties to marriage must be male and female honouring Hyde v Hyde. In a way, the chromosomal, gonadal and genitalia factors considered by Omrod J in Corbett v Corbett (otherwise Ashley) still hold sway – discounting the reception of marriage between transsexuals and homosexuals etc ).
4.3. What about cohabitation ?
There are indications of the existence of pre and extra marital cohabitation among the Chinese and Tamil Indians. In 1960, a study of the Hindu Tamil Indians of the Pan Malaya Rubber Plantation found that :
- Cohabitation (certtu-k-kolu-tal) prevailed as unions of convenience and cooperation of the opposite sex among early migrants.
- Among the Chinese, cohabitation is well-known. In several cases, the courts even held that such unions may give rise to the presumption f marriage (man and tsip reputation). However, after the Law Reform (Marriage & Divorces) Act 1982, the “man and tsip “ relationship isn’t recognised to be sufficient to constitute marriage and only monogamous marriages are recognized in law.
Apart from this, there is nothing in the Law Reform (Marriage & Divorces) Act 1982 to prohibit and punish cohabitation expressly.
Among the Muslims, there are express statutory provisions in State enactments which prohibit cohabitation, fornication, illicit sexual intercourse and khalwat- making them offences punishable with imprisonment and/or fine.
Together with this and the position of Islam as the religion of the Federation (Article 3(1) of the Federal Constitution) and the ruling party’s commitment towards infusing Islamic values wherever possible.
Hence, it may be safely assumed that marriage as envisaged by Hyde v Hyde in Malaysia shall remain relevant for the present. The strong cultural base and weak footing of Human Rights sentiment here shall protect the Marriage Institution.
However, de facto relations, cohabitation, union among same sexes shall also remain staggering alongside the mainstream recognition of marriage as between a man and woman only.
Hence, as far as the Chinese and Indians in Malaysia ( i.e after 1982) are concerned, Hyde v Hyde’ s contention as per the quotation in the question is relevant. However, as for the Muslims in Malaysia marriage need not be necessarily be between one man and one woman. It can be polygamous provided it is within the prescribed parameters as circumscribed by Islamic teachings. The Muslim jurists have laid down the following conditions if someone wants to take more than one wife:
(i). He should have sufficient financial resources to look after the needs of the additional wives that he has taken.
(ii). He must do equal justice to them all.Each wife should be treated equally as far as the fulfillment of their conjugal and other rights is concerned.
Hence, with the Muslims, Hyde v Hyde is of little significance.
4.4 Relevancy of Hyde v Hyde in the United Kingdom.
The UK “state of affairs” under which Hyde v Hyde was decided has been under tremendous changes and is currently facing an onslaught of challenges.
Fundamentally, marriage is still recognised as being between a man and a woman eg; section 11(b) Matrimonial Causes Act 1973 makes second marriage void.
The religious fervor of Christianity is a strong bulwark against impending ramifications . The following exhortations with Christian sentiment deeply embedded in them still have its influence . For example :
“You are pronounced man and wife still death do you apart” is still the sanctimonious prelude before the Church bell and the much awaited frenzied utterance by the Pastor , “ you may kiss your bride now ” begin.
The denouncements of the sins of the flesh in the New Testament such as :
“Thou shalt not covet thy neighbour’s wife”
“Anyone who looketh on a woman to lust after her committed
adultery with her already in the heart”
still reverberates in the Bible study classes in the perimeters of the churches.
Couple with these, the confinement of marriage to certain permitted degrees (First Schedule of Marriage Act 1949, Children Act 1975 and Prohibited Degree Relationship Act 1986 ) still remain relevant in UK.
4.5 The changing panorama of events in the matrimonial front.
Legal exclusion from the status of marriage either because of sexual orientation, gender categorization, or lack of compliance with formalities has become the norm these days. It has brought about a wave of new social and legal thinking. The social thinking and the resultant action certainly transcend the Hyde v Hyde’s conception of what marriage is or ought to be. This is apparent in three different aspects.
Transexuals
Bellinger v Bellinger has brought about a new line of thought - in terms of viewing transexuals.. Even though Mrs Bellinger’s application was only for a declaration that their marriage of 20 years was valid because she was female for the purposes of section 11 ( c ) Matrimonial Causes Act 1973, her case has driven home the point that judicial discretion is a valid means of legal change. In that case, Thorpe J (in his dissenting judgment) drew attention to judgments of the European Court of Human Rights which pressed or the need for law regarding transexuals to be kept under review in the light of the new scientific developments. Another inroad into what Hyde v Hyde would have abnoxious and unsanctimonious.
Presumption of marriage and cohabitation.
The concept of presumption of marriage where a man and a woman have cohabited for such a length of time has a long history but seldom pleaded. In Pazpena De Vire v Pazpena De Vire in 2001, such a long cohabitation was deemed to be marriage. Here therefore, by dint of the legal tool of presumption, a cohabitation can metamorphosize into marriage.
Gender Recognition Act 2004 and Civil Partnership Act 2004.
Once a gender recognition certificate is obtained from the Gender Recognition Panel, then for all legal purposes, the applicant shall be treated as per their acquired gender than their birth certificate gender. The Gender Recognition Act 2004 has provided this novel facility.
Presently, same-sex couples can enter into quasi-marriage and be regarded as each other’s family. The Civil Partnership Act 2004 permits this. Transgendered persons , who have obtained gender recognition certificates from the Gender Recognition Panel, may enter into a civil partnership with member of the same sex to that of their newly acquired gender. The parties only need to have the relevant mental and legal capacity and must not be within prohibited degrees of kindred.
Hence, with all these ramificatiions and more knocking vociferously at the doors of the legal monolith of UK , it is indeed questionable as to whether the quotation that “ Marriage is between one man and one woman to the exclusion of others” as in Hyde v Hyde still maintains its relevancy in there – incidentally from where it had its genesis !
4.6 Relevancy of Hyde v Hyde in the New Zealand.
Sections 29, 30 and 31(1) of the Marriage Act 1955 makes a marriage void ibinitio if one of the parties to the marriage is already married thereby indicating the upholding of monogamous marriages.
However, several developments have made the union between man and woman a questionable aspect thereby rendering the quotation in Hyde v Hyde as irrelevant as far as New Zealand is concerned.
In 1995, in the New Zealand case of AG v Otahuhu Family Court , a transsexual person’s reassigned sex was recognized for the purpose of validating a marriage as opposed to Bellinger v Bellinger.
The ratio being :
“ if society allows such a person to undergo therapy and surgery in order to fulfill that desire, then it ought to allow such a persons to function as fully as possible in their reassigned sex.”
4.7 The fast changing family laws in New Zealand.
Initially, New Zealand had eschewed gay marriage just like most countries in Europe. However, later it opted for the less arguable but easy to sell legal model in guise of Civil Unions. Civil Unions in New Zealand is available to both heterosexuals and homosexuals parties and it mirrors that for marriages. Thus, there are similar rule for invalidity for example need for consent and prohibition within certain degrees of relationship. Also the rule for dissolution of marriage, i.e the 2 years living apart requirement, is also available in civil unions. Pertinently, a couple can convert from marriage into civil unions or vice versa ( if heterosexual ).
Same rights as regards immigration, next of kin status, social welfare, matrimonial property as in marriages are extended to civil unions as well.
Hence, there is growing trend that many opt for civil unions because the religious overtones implied or claimed for the word “ marriage” can be avoided.
It is therefore, abundantly clear that , as far as New Zealand is concerned it has completely freed itself from the shackles of the quotation in Hyde v Hyde. It stands foremost in bringing about changes and ramifications that have reverberating impact, in one way or another , in the other countries with allied problems, culture and the need to reform.
5. CONCLUSSION.
The decision in Hyde v Hyde, truly a landmark legal piece, has withstood the test of time over the eons. However, with the recent spate of demands for change under Human Rights and humanity plus the changes in marital relationship, its lustre is slowly being lost as can be seen in Malaysia, United Kingdom and New Zealand. On one hand the institution of marriage as conceived of in the past has metamorphosed into a plethora of varied hybrids . Yet on the other, civil unions and civil partnerships are creating institutions in their own accord.
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Bibliography
1. Cohabitation, Marriage and the Law – Social Change and Legal Reform
in the 21st Century by Anne Barlow, Simon Duncan, Grace James and Alison Park.
2. Catholic Education Resource Center – Robert P. George
3. The Economist 6 January 2001
4. Landmark Family Legislation by Bill Atkin in International Survey of Family Law.,2006
5. Family Law in Malaysia & Singapore – Ahmad Ibrahim
6. Family and Divorce in Malaysia (1983) 1 CLJ 220 by Women Lawyers’ Association
7. Women in Shariah by Abdul Rahman I Doi
8. Reshaping Marriage and the Family – The GRA 2004 and the CPA 2004 by Mary Welstead
9. Catholic Education Resource Centre – Robert P. George
10. Family Law in Malaysia – Mimi Kamariah Majid
11. A History of the Wife by Marilyn Yalom Harper Collins
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Sunday, July 26, 2009
THE PERPLEXING EMBARGO ON LADIES AT SABARIMALA - A dissection of the possible and plausible reasons -A View Point
(can also be assessed at the Akhila Bharata Ayappan Seva Sangham,Kerala -http://www.saranamayyappa.com/ .This article is published therein)
By
Madawan A Nair
BEcons(Hons)Mal,LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA
Unlike the modern liberated women, the Indian women of the past have accepted such embargoes without many questions or indignation It was because they lived in a cultural set-up which straightaway ostracized and reprimanded any female who raised such questions. In fact, they risked being labeled as foolish and their families frowned upon for bringing up the females in an improper manner. This being the case, they remained comfortable with that mindset and contented with whatever the men folk decreed or ordained. Poor women, but great mothers without whom we wouldn't be here. Ammei Devi Namosthuthe! Without the existence of the female species who would have propagated the human race?
Satyavati, . who was a fisherwoman from a low caste,had a brief encounter with Parasara (the grandson of Brahmarishi Vasista ) and produced the great sage Veda Vyasa (or Krishna Dvaipayana as he was also known) without whom the Vedas would not have been in our midst! ........ Sages and Saints of India, Dr Manu Bhagat, pp 26
Anyway let us ponder upon the cultural base upon which this embargo is based in Kerala, where Sabarimala Sannidhanam is located, as well as elsewhere. In most of these places it had been an age old custom and practice that only men are permitted to conduct pooja and other rituals in temples. This accounts for the reason why we see only tantris and nambudiris conducting poojas in temples! The ladies especially the ones having attained puberty, are prohibited from conducting the pooja rituals for a number of reasons. This fact is ingrained in them from their childhood by the family elders. Based purely on reflection and intellectual ponderings. the foremost plausible reason, is the likelihood of the female suddenly becoming `unclean' during the course of the prayers and ceremonies by the onset of menstruation. The regular menstrual cycle in most healthy women is once every 28 days or so. It is common clinical knowledge that menstrual cycle of women can deviate from its usual 28 day periodicity. It may begin earlier or later due to various factors like poor health, hormonal imbalance, anxiety, over exercise, emotional state etc. This means that there are chances of menstruation occurring during pooja rituals. This is especially so during the mandala vrutham which extends to a duration longer than 28 days. Hence, it is not possible for women to remain `clean' during the whole period of fast, prayers or ceremonies.
The Hebrew language has a word niddah for menstruating woman, and because the ancient rabbis thought her unclean, her activities were strictly regulated by Jewish law. When her period was over, she had to wait seven days and then clean herself in a mikvah, or ritual bath. Some orthodox Jewish women still observe this rule. ...The ABCs of Human Body, pp 275
One must also keep in mind that the holy atmosphere prevailing at Sannidhanam gives rise to suddenly fluctuating emotional levels of ecstasy induced by intense devotion to and the proximity of Lord Ayyappa. The floodgates of emotions are sprung open in HIS vicinity. If this is so with most men, even those of more stoic and hardy nature, imagine the state of a lady in the threshold of getting her periods (or who has artificially prolonged the onset of the menstruation cycle through medication). Another factor is the trek up the hill to Sannidhanam. The present trekking path to Sannidhanam is relatively more comfortable than the one that existed in the days gone by. Nevertheless the climb up the hill is demanding. Thus the rapidly waxing and vaning emotional and physical syndromes could trigger the onset of an untimely menstruation. Applying these reasons, it is biologically difficult for ladies to remain 'clean' through the long period of vrutham (austerities) required before undertaking Sabarimala pilgrimage.
What is so `unclean' about menstruation? After all isn't it a biological process decreed by God himself, one may ask? The presence of blood in any prayer ritual is a definite `No'. Animal worship and blood sacrifices as seen in some temples are certainly against established norms of worship. The mere presence of blood desecrates the place of worship and invites the evil force, hovering in nether worlds beyond our perception and senses. The menstrual blood is not just blood itself but blood combined with a dead egg. This egg, in it's fertile state had contained intrinsic life-force or sakthi of being able to create another `being' under opportune conditions? Unfertilised and ejected during the menstruation process, the egg is dead. Devoid of its potency, it becomes another dead being or Pretham. It is thus, tantamount , at least figuratively speaking, to bringing a miniaturised graveyard to the venue of the ceremony. That is why young ladies are forbidden from visiting temples during such periods. Besides, in many communities, during their `unclean' times they are also forbidden from venturing out at odd hours like at noon and dusk, and to places like the graveyard.
Bearing in mind the philosophy of the 18 steps, emotional states like Kama, Krodha, Lobha, Moha, Madha, Maltsarya, Asooya and Dhumb should be restrained or totally shed. For some ladies, the pre and post menstrual syndromes (PMS) and the accompanying pain that they undergo during such times, throw them off balance both emotionally and physically. The agony is such that they have to often take recourse to medical treatment to alleviate the pain. Such being the case, can they properly follow the rituals prescribed during the period of vrutham ? Not only that, during such turbulent period of agony, they are caught in a disturbed state of mind like anger and pain which could divert their attention from the sole aim of devotion to God.
In this so called PMS there may be inexplicable and uncontrolled bouts of anger and crying due to the chemical changes in womens' bodies. ...The ABC's of the Human Body, pp 275
Frankly, can a lady helplessly struggling with her hot flushes and abdominal pains effectively put her mind to prayers? Can she cope up with the crowds at Sannidhanam who are constantly jostling, shoving, pushing and pulling while waiting in queue for a darshan or while ascending the holy 18 Steps? These are practical aspects worth considering and reflecting upon. Don't just point your fingers at the `Embargo' and smile sheepishly.
Being steadfast in brahmacharyam and `fasting', the eventual period of getting darshan is a poignant point to remember. The mind has to be devoid of any form of worry, attachment or mental unease. It has to be wide open to realise the oneness of the personal and impersonal Brahmans. The male devotees ascending the hills, at least most of them, do so after observed a lengthy period of fasting - including celibacy. Observing celibacy during the fasting period is not as easy an effort as one might think. The minds of married men, attuned to conjugal affairs, have to be restrained. Even the occasional mental flights of fantasy have to be nipped in the bud. In short, controlling the basal instincts of procreation is paramount though extremely difficult. It is a practice one has to adhere to. This self denial is a prime requisite to get anywhere near to the shadow of the Paramatma Himself. Great sages like Viswamitra and Ravana have fallen to this overpowering allurement of sexual attraction. What of mere mortals like us? Even Brahma, it is said, nearly faltered.
On creating Vani, he (Brahma) was himself overcome by a lustful sentiment towards her, whereupon he was rescued from this dark passion by his own offspring like Sanaka, Daksha and others. .... Narayaneeyam: Canto 10 V.8
Instances of temptation can occur on many occasions. Most of the devotees have a bath in Pampa. On the banks of Pampa, no covered facilities exist to even change clothes and the pilgrims are forced to change clothes in the open. Similarly, the trek during pilgrimage is strenuous and sweaty. Garments that one wears gets soaked in sweat and tend to vividly cling to the body in often sexually provocative and embarrassing fashion. Therefore, despite whatever one may vehemently say, the possibility of the male devotees falling prey to this emotional lure is there, should young ladies in their prime and desirable ages, go up the hills alongside them. One may say that this should not be case and that one should have self-control even when confronted by temptations. If that self control is there, why are there growing reports of sexual crimes splattered all over the newspapers? "The mind is the source of both bondage and liberation" said the great Mahatma. Each yatra is a practice to control that mind and attain liberation. It takes several yatras, several doses of enlightenment and absolute surrender to attain that level of self restraint. With all this in view , it may even be worthwhile pondering over the `below the age of 10' clause, because empirically we notice young girls below ten attaining puberty these days.
Sabarimala yatra is unique from a mere visit to a temple in the neighbourhood. A visit to the neighbouring temple is to focus on the presiding deity installed there and contemplate on the deity's presence everywhere and in everything - at least that is what we ought to do. But with the din and calamity in the temple ground, the possibility of our bumping into our close friends, the glittering gold bracelets, elaborately dressed women exuding heady perfumes often tend to divert our attention from our primary aim of worship. Our minds during such brief visits are often not focused enough towards contemplation, introspection and prayer.
To meet the King you ought to be decenty attired, for a wedding reception you adorn the requisite clothes and to visit the temple you ought to be appropriately dressed both literally and figuratively. To see Swamy Ayyappa, sitting atop Sabarimala in the yogic state, bathing in the Satvic ocean and exuding such aura, with His eyes closed in ` tapas' and absolutely detached from everything , it is necessary for his devotees to be in consonance i.e remain detached - physically and mentally from the earthly world with its attendant temptations. Sabrimala Sri Ayyappa is the Kali-yuga varadan (saviour) and the only way to realise Him is through absolute detachment from earthly distractions. All the Hindu scriptures talk of the necessity for this sort of detachment. From his birth man labours make under the `eight bondages' of hatred, fear, shame, aversion, egoism, vanity, pride of noble birth and obsession with the formalities of good conduct. When one calls on the Mother, one should discard these `bondages' and call on Her with a concentrated mind......The Great Sage of Hinduism - Sri Ramakrishna
To really attain detachment and allow the satvic qualities to rise to the surface needs a lot of determination and dedication. The fast, celibacy, the bhajans, the satsangs, the mala with the mudra, the irumudi coconut, the black/blue attire, the rough path, the towering hills, the mantras are all aimed at arousing the Satvic qualities in us by killing the yearnings of the mind that has been so habituated from birth by the social environment of the day. The key word here is the `mind'. That is the single most entity to be harnessed. Should ladies in the embargoed group be present there, is it not bound to become a source of distraction?
You see, it is the nature of the water to flow downwards, but the sun's rays lift it up towards the sky; likewise it is the very nature of the mind to go to lower things, to objects of enjoyment, but the grace of God can make the mind go towards higher objects. ......Mother Sarada Devi - The Gospel of the Holy Mother, pp175
On the part of the men, It is the lack of commitment and unrestrained surrender to the dictates of the mind that have brought an array of social evils like wife beating, divorces, adultery, drunken husbands, sexual delinquency etc. The very man, for whom a lady yearns and pines for before marriage becomes awry and distasteful after matrimony in spite of her utter devotion to him. While women look for romanticism, motherhood and security in marriage, men look at women as objects through whom they can fulfill their baser instincts. In contemporary times physical, mental and sexual aberrations are openly portrayed through print and visual media. Often this portrayal falsely denotes these perversions as signs of success in life and a trademark of the `In' crowd. If you are not `In' then you are the left `Out' as the less successful of society. Men must become more balanced, equipoised, committed to their lives and to those around them. Sabarimala `vrutham' is one such attempt by men to attain essential moral qualities towards better conduct. Therefore, will it not be unfair for the ladies to disturb the noble path the men folk are taking to cleanse their minds .
It is the ultimate aim of any religious occasion or religious teacher to endeavour to teach that the identification of the self with the body must go.
The body is nothing but three pounds of ashes when it is cremated.....Mother Sarada Devi - Gospel of the Holy Mother pp 49
Mother Sarada Devi said that tThis take time , effort, sacrifices, a conducive environment and the co-operation of the female of the species! Even then it is difficult to fully realise this truth. According to my guru Swamiji Krishnan Sreedharan, it takes a lot of vairagya (commitment) . But isn't an iota of realisation better than none at all? He adds that everything needs a beginning, no matter what falterings, fits and starts there are.
Thus, the Sabarimala yatra and the antecedent fasting regime provide just that (the beginning) - not the golf courses or holiday resorts for there too you shall only find factors awaiting to aggravate what you wish to free yourselves from - the sense-objects and their enjoyments.
When the mind becomes Nirvishaya - free from thinking of sense-objects and their enjoyments , it is meditation, God has hidden Himself in this world and is seated in the cavity of the lotus near your heart. He is the absentee landlord......Swami Sivananda - Concentration and Meditation, pp118
Another reason for the embargo is that it often told that Swami Ayyappan Himself requested this of his earthly guardian, the King of Pandalam. We cannot easily dismiss this as a figment of imagination. As per my learned GuruSwamiji Krishnan Sreedharan, Lord Ayyappan or Manikantan's (as he is called ) existence can be traced to about 700 to 800 years back. In fact the Pandalam castle is still in existence in a dilapidated state and the decendents of the Pandalam lineage are still living. They are honoured by Ayyappa devotess and still hold a wand of influence over the runnning of the Sabarimala Sannidhanam. Currently there is a tussle over who should have wider span of power, the Pandalam family or the Travancore Devasom Board? That the thiruvabharanam, made by the erstwhile Pandalam maharajah, is adorned on the deity on Makaravilakku day is another proof of the bond between Lord Ayyappa and the Pandalam family. In Puthenveedu , Manikantan's sword and several belongings are still preserved and worshipped. Hence, it is highly possible that the request would have been made by Him. As to why, that is left to speculation and logical deduction, but looking at the yogic posture of His vigraham (idol) it is evident that the deity is in a special posture of tapas and meditation. Here, in Sabrimala one of HIS silent messages is to be free from the grips of Moha and it could have been His intention that He himself does not become a perpetrator of the same - hence the embargo. He wanted to be undisturbed in His yogic bhava or mood. According to the legends He turned down the proposal of marriage from Malikapuram herself. Like any other sage in a similar endeavour, he may not have wanted the presence of young ladies there. Not that he will succumb to their charms but the other way around i.e so that the young ladies do not get attached to Him emotionally (just like the Gopis of Vrindavan to Krishna) and thus forget their earthly obligations and duties to their own families. Remember how the gopis, with the least thought of their own husbands and children, were enraptured end trapped in the beauty of the young Krishna!
Thus, HIS request has to be rightly honoured by young ladies. Not with any defiance or recalcitrance but with their ever-present gift of love and understanding. Our present day minds are too sullied by the hustle and bustle of contemporary material world that we refuse to ponder deeply on various age old practices but summarily rush to our own ill founded conclusions. We must learn to respect age old traditions and embargoes of the past. They are there for the reasons usually untold , but certainly based on sound reasoning.
Researched and written by Madawan, Ananthi and Ashwini.
Comments are welcome Disclaimer::- The views expressed in this article are the view points of the author and his fellow researchers. It does not purport to represent the view point of ABASS or the web editor. No part of the article is intended to be disparaging to either of the sexes, persons, faiths or cults.
Copyright © 1999 Akhila Bharatha Ayyappa Seva Sangham (ABASS). All rights reservedCreated and Hosted by NetVigilante
-------------------------------------------------------------------------------------------------
(can also be assessed at the Akhila Bharata Ayappan Seva Sangham,Kerala -http://www.saranamayyappa.com/ .This article is published therein)
By
Madawan A Nair
BEcons(Hons)Mal,LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA
"Only girls below the age of 10 and ladies above the age of 50 are permitted to climb up the hills to Sabarimala" is the practice that has been followed, in respect of Sabarimala pilgrimage, since time immemorial. But this embargo has given rise to many questions. The answers given so far have not satisfied those who have raised these queries. Otherwise why must the question be raised over and over again? The main reason for this seems to be that the answers provided in response to this query, are unreasoned and abrupt. Most of these answers have been provided by individuals who have not had sufficient curiosity to explore the relevant aspects deeper. Seek, understand and explain the little that you know for the benefit of others - that sounds spiritual enough doesn't it? The explanations or the rationale I am trying to provide are based on deep introspection, wide reading and research which I had embarked upon. The answer (or answers) to this question harps on a mix of cultural, historical, biological and spiritual reasonings.
Unlike the modern liberated women, the Indian women of the past have accepted such embargoes without many questions or indignation It was because they lived in a cultural set-up which straightaway ostracized and reprimanded any female who raised such questions. In fact, they risked being labeled as foolish and their families frowned upon for bringing up the females in an improper manner. This being the case, they remained comfortable with that mindset and contented with whatever the men folk decreed or ordained. Poor women, but great mothers without whom we wouldn't be here. Ammei Devi Namosthuthe! Without the existence of the female species who would have propagated the human race?
Satyavati, . who was a fisherwoman from a low caste,had a brief encounter with Parasara (the grandson of Brahmarishi Vasista ) and produced the great sage Veda Vyasa (or Krishna Dvaipayana as he was also known) without whom the Vedas would not have been in our midst! ........ Sages and Saints of India, Dr Manu Bhagat, pp 26
Anyway let us ponder upon the cultural base upon which this embargo is based in Kerala, where Sabarimala Sannidhanam is located, as well as elsewhere. In most of these places it had been an age old custom and practice that only men are permitted to conduct pooja and other rituals in temples. This accounts for the reason why we see only tantris and nambudiris conducting poojas in temples! The ladies especially the ones having attained puberty, are prohibited from conducting the pooja rituals for a number of reasons. This fact is ingrained in them from their childhood by the family elders. Based purely on reflection and intellectual ponderings. the foremost plausible reason, is the likelihood of the female suddenly becoming `unclean' during the course of the prayers and ceremonies by the onset of menstruation. The regular menstrual cycle in most healthy women is once every 28 days or so. It is common clinical knowledge that menstrual cycle of women can deviate from its usual 28 day periodicity. It may begin earlier or later due to various factors like poor health, hormonal imbalance, anxiety, over exercise, emotional state etc. This means that there are chances of menstruation occurring during pooja rituals. This is especially so during the mandala vrutham which extends to a duration longer than 28 days. Hence, it is not possible for women to remain `clean' during the whole period of fast, prayers or ceremonies.
The Hebrew language has a word niddah for menstruating woman, and because the ancient rabbis thought her unclean, her activities were strictly regulated by Jewish law. When her period was over, she had to wait seven days and then clean herself in a mikvah, or ritual bath. Some orthodox Jewish women still observe this rule. ...The ABCs of Human Body, pp 275
One must also keep in mind that the holy atmosphere prevailing at Sannidhanam gives rise to suddenly fluctuating emotional levels of ecstasy induced by intense devotion to and the proximity of Lord Ayyappa. The floodgates of emotions are sprung open in HIS vicinity. If this is so with most men, even those of more stoic and hardy nature, imagine the state of a lady in the threshold of getting her periods (or who has artificially prolonged the onset of the menstruation cycle through medication). Another factor is the trek up the hill to Sannidhanam. The present trekking path to Sannidhanam is relatively more comfortable than the one that existed in the days gone by. Nevertheless the climb up the hill is demanding. Thus the rapidly waxing and vaning emotional and physical syndromes could trigger the onset of an untimely menstruation. Applying these reasons, it is biologically difficult for ladies to remain 'clean' through the long period of vrutham (austerities) required before undertaking Sabarimala pilgrimage.
What is so `unclean' about menstruation? After all isn't it a biological process decreed by God himself, one may ask? The presence of blood in any prayer ritual is a definite `No'. Animal worship and blood sacrifices as seen in some temples are certainly against established norms of worship. The mere presence of blood desecrates the place of worship and invites the evil force, hovering in nether worlds beyond our perception and senses. The menstrual blood is not just blood itself but blood combined with a dead egg. This egg, in it's fertile state had contained intrinsic life-force or sakthi of being able to create another `being' under opportune conditions? Unfertilised and ejected during the menstruation process, the egg is dead. Devoid of its potency, it becomes another dead being or Pretham. It is thus, tantamount , at least figuratively speaking, to bringing a miniaturised graveyard to the venue of the ceremony. That is why young ladies are forbidden from visiting temples during such periods. Besides, in many communities, during their `unclean' times they are also forbidden from venturing out at odd hours like at noon and dusk, and to places like the graveyard.
Bearing in mind the philosophy of the 18 steps, emotional states like Kama, Krodha, Lobha, Moha, Madha, Maltsarya, Asooya and Dhumb should be restrained or totally shed. For some ladies, the pre and post menstrual syndromes (PMS) and the accompanying pain that they undergo during such times, throw them off balance both emotionally and physically. The agony is such that they have to often take recourse to medical treatment to alleviate the pain. Such being the case, can they properly follow the rituals prescribed during the period of vrutham ? Not only that, during such turbulent period of agony, they are caught in a disturbed state of mind like anger and pain which could divert their attention from the sole aim of devotion to God.
In this so called PMS there may be inexplicable and uncontrolled bouts of anger and crying due to the chemical changes in womens' bodies. ...The ABC's of the Human Body, pp 275
Frankly, can a lady helplessly struggling with her hot flushes and abdominal pains effectively put her mind to prayers? Can she cope up with the crowds at Sannidhanam who are constantly jostling, shoving, pushing and pulling while waiting in queue for a darshan or while ascending the holy 18 Steps? These are practical aspects worth considering and reflecting upon. Don't just point your fingers at the `Embargo' and smile sheepishly.
Being steadfast in brahmacharyam and `fasting', the eventual period of getting darshan is a poignant point to remember. The mind has to be devoid of any form of worry, attachment or mental unease. It has to be wide open to realise the oneness of the personal and impersonal Brahmans. The male devotees ascending the hills, at least most of them, do so after observed a lengthy period of fasting - including celibacy. Observing celibacy during the fasting period is not as easy an effort as one might think. The minds of married men, attuned to conjugal affairs, have to be restrained. Even the occasional mental flights of fantasy have to be nipped in the bud. In short, controlling the basal instincts of procreation is paramount though extremely difficult. It is a practice one has to adhere to. This self denial is a prime requisite to get anywhere near to the shadow of the Paramatma Himself. Great sages like Viswamitra and Ravana have fallen to this overpowering allurement of sexual attraction. What of mere mortals like us? Even Brahma, it is said, nearly faltered.
On creating Vani, he (Brahma) was himself overcome by a lustful sentiment towards her, whereupon he was rescued from this dark passion by his own offspring like Sanaka, Daksha and others. .... Narayaneeyam: Canto 10 V.8
Instances of temptation can occur on many occasions. Most of the devotees have a bath in Pampa. On the banks of Pampa, no covered facilities exist to even change clothes and the pilgrims are forced to change clothes in the open. Similarly, the trek during pilgrimage is strenuous and sweaty. Garments that one wears gets soaked in sweat and tend to vividly cling to the body in often sexually provocative and embarrassing fashion. Therefore, despite whatever one may vehemently say, the possibility of the male devotees falling prey to this emotional lure is there, should young ladies in their prime and desirable ages, go up the hills alongside them. One may say that this should not be case and that one should have self-control even when confronted by temptations. If that self control is there, why are there growing reports of sexual crimes splattered all over the newspapers? "The mind is the source of both bondage and liberation" said the great Mahatma. Each yatra is a practice to control that mind and attain liberation. It takes several yatras, several doses of enlightenment and absolute surrender to attain that level of self restraint. With all this in view , it may even be worthwhile pondering over the `below the age of 10' clause, because empirically we notice young girls below ten attaining puberty these days.
Sabarimala yatra is unique from a mere visit to a temple in the neighbourhood. A visit to the neighbouring temple is to focus on the presiding deity installed there and contemplate on the deity's presence everywhere and in everything - at least that is what we ought to do. But with the din and calamity in the temple ground, the possibility of our bumping into our close friends, the glittering gold bracelets, elaborately dressed women exuding heady perfumes often tend to divert our attention from our primary aim of worship. Our minds during such brief visits are often not focused enough towards contemplation, introspection and prayer.
To meet the King you ought to be decenty attired, for a wedding reception you adorn the requisite clothes and to visit the temple you ought to be appropriately dressed both literally and figuratively. To see Swamy Ayyappa, sitting atop Sabarimala in the yogic state, bathing in the Satvic ocean and exuding such aura, with His eyes closed in ` tapas' and absolutely detached from everything , it is necessary for his devotees to be in consonance i.e remain detached - physically and mentally from the earthly world with its attendant temptations. Sabrimala Sri Ayyappa is the Kali-yuga varadan (saviour) and the only way to realise Him is through absolute detachment from earthly distractions. All the Hindu scriptures talk of the necessity for this sort of detachment. From his birth man labours make under the `eight bondages' of hatred, fear, shame, aversion, egoism, vanity, pride of noble birth and obsession with the formalities of good conduct. When one calls on the Mother, one should discard these `bondages' and call on Her with a concentrated mind......The Great Sage of Hinduism - Sri Ramakrishna
To really attain detachment and allow the satvic qualities to rise to the surface needs a lot of determination and dedication. The fast, celibacy, the bhajans, the satsangs, the mala with the mudra, the irumudi coconut, the black/blue attire, the rough path, the towering hills, the mantras are all aimed at arousing the Satvic qualities in us by killing the yearnings of the mind that has been so habituated from birth by the social environment of the day. The key word here is the `mind'. That is the single most entity to be harnessed. Should ladies in the embargoed group be present there, is it not bound to become a source of distraction?
You see, it is the nature of the water to flow downwards, but the sun's rays lift it up towards the sky; likewise it is the very nature of the mind to go to lower things, to objects of enjoyment, but the grace of God can make the mind go towards higher objects. ......Mother Sarada Devi - The Gospel of the Holy Mother, pp175
On the part of the men, It is the lack of commitment and unrestrained surrender to the dictates of the mind that have brought an array of social evils like wife beating, divorces, adultery, drunken husbands, sexual delinquency etc. The very man, for whom a lady yearns and pines for before marriage becomes awry and distasteful after matrimony in spite of her utter devotion to him. While women look for romanticism, motherhood and security in marriage, men look at women as objects through whom they can fulfill their baser instincts. In contemporary times physical, mental and sexual aberrations are openly portrayed through print and visual media. Often this portrayal falsely denotes these perversions as signs of success in life and a trademark of the `In' crowd. If you are not `In' then you are the left `Out' as the less successful of society. Men must become more balanced, equipoised, committed to their lives and to those around them. Sabarimala `vrutham' is one such attempt by men to attain essential moral qualities towards better conduct. Therefore, will it not be unfair for the ladies to disturb the noble path the men folk are taking to cleanse their minds .
It is the ultimate aim of any religious occasion or religious teacher to endeavour to teach that the identification of the self with the body must go.
The body is nothing but three pounds of ashes when it is cremated.....Mother Sarada Devi - Gospel of the Holy Mother pp 49
Mother Sarada Devi said that tThis take time , effort, sacrifices, a conducive environment and the co-operation of the female of the species! Even then it is difficult to fully realise this truth. According to my guru Swamiji Krishnan Sreedharan, it takes a lot of vairagya (commitment) . But isn't an iota of realisation better than none at all? He adds that everything needs a beginning, no matter what falterings, fits and starts there are.
Thus, the Sabarimala yatra and the antecedent fasting regime provide just that (the beginning) - not the golf courses or holiday resorts for there too you shall only find factors awaiting to aggravate what you wish to free yourselves from - the sense-objects and their enjoyments.
When the mind becomes Nirvishaya - free from thinking of sense-objects and their enjoyments , it is meditation, God has hidden Himself in this world and is seated in the cavity of the lotus near your heart. He is the absentee landlord......Swami Sivananda - Concentration and Meditation, pp118
Another reason for the embargo is that it often told that Swami Ayyappan Himself requested this of his earthly guardian, the King of Pandalam. We cannot easily dismiss this as a figment of imagination. As per my learned GuruSwamiji Krishnan Sreedharan, Lord Ayyappan or Manikantan's (as he is called ) existence can be traced to about 700 to 800 years back. In fact the Pandalam castle is still in existence in a dilapidated state and the decendents of the Pandalam lineage are still living. They are honoured by Ayyappa devotess and still hold a wand of influence over the runnning of the Sabarimala Sannidhanam. Currently there is a tussle over who should have wider span of power, the Pandalam family or the Travancore Devasom Board? That the thiruvabharanam, made by the erstwhile Pandalam maharajah, is adorned on the deity on Makaravilakku day is another proof of the bond between Lord Ayyappa and the Pandalam family. In Puthenveedu , Manikantan's sword and several belongings are still preserved and worshipped. Hence, it is highly possible that the request would have been made by Him. As to why, that is left to speculation and logical deduction, but looking at the yogic posture of His vigraham (idol) it is evident that the deity is in a special posture of tapas and meditation. Here, in Sabrimala one of HIS silent messages is to be free from the grips of Moha and it could have been His intention that He himself does not become a perpetrator of the same - hence the embargo. He wanted to be undisturbed in His yogic bhava or mood. According to the legends He turned down the proposal of marriage from Malikapuram herself. Like any other sage in a similar endeavour, he may not have wanted the presence of young ladies there. Not that he will succumb to their charms but the other way around i.e so that the young ladies do not get attached to Him emotionally (just like the Gopis of Vrindavan to Krishna) and thus forget their earthly obligations and duties to their own families. Remember how the gopis, with the least thought of their own husbands and children, were enraptured end trapped in the beauty of the young Krishna!
Thus, HIS request has to be rightly honoured by young ladies. Not with any defiance or recalcitrance but with their ever-present gift of love and understanding. Our present day minds are too sullied by the hustle and bustle of contemporary material world that we refuse to ponder deeply on various age old practices but summarily rush to our own ill founded conclusions. We must learn to respect age old traditions and embargoes of the past. They are there for the reasons usually untold , but certainly based on sound reasoning.
Comments are welcome Disclaimer::- The views expressed in this article are the view points of the author and his fellow researchers. It does not purport to represent the view point of ABASS or the web editor. No part of the article is intended to be disparaging to either of the sexes, persons, faiths or cults.
Copyright © 1999 Akhila Bharatha Ayyappa Seva Sangham (ABASS). All rights reservedCreated and Hosted by NetVigilante
-------------------------------------------------------------------------------------------------
FAKULTI UNDANG-UNDANG
UNIVERSITI KEBANGSAAN MALAYSIA
TOPIC:
To what extent do the domestic laws of Malaysia tackle the problems of :
a. oil spills
b. hazardous and noxious substances in the Straits of Malacca.
Prepared By :
MADAWAN A.NAIR
BEcons(Hons),LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA.
1. INTRODUCTION
1.1.General - The changing perspective of the sea
The advent of the 21st century has brought about a total shift in our understanding of the vast expanse of water covering the earth – namely the sea. After the second world war , decolonization and nation- building became the central theme of most states in the world. At about the same time, coastal states sought sovereignty and territoriality of the sea.
The UNCLOS convened at Jamaica (on 10.12.82) changed the way spaces in the sea is to be construed. Indonesia and Philippines have changed their identities as nation–states to become archipelagic states. The UNCLOS’s demarcation of contiguous and EEZ zones for coastal sea has also changed the way we think of the sea – it is now a resource to be jealously secured, guarded and managed. It is now a resource with infinite riches for economic growth and sustenance. Complacency and inaction by any coastal state would not only deprive it of enjoying this wealth but could also be disastrous to its economic growth !
1.2. An overview of the Straits of Malacca.
The Straits of Malacca is the narrow body of water flanked by the west coast of Thailand, the north-east coast of Malaysia and the south-west of Sumatra island. It is 520 miles in length and varies in width from 200 miles in the north to 11 miles at the south. Its depth varies from 73 metres to less than 25 metres. Types of vessels that transit the Straits of Malacca are namely oil tanks, container vessels, cargo vessels and other passenger ships. More than 90% of the vessels are destined for Japan, Taiwan, South Korea and Hong Kong.
Furthermore, Malaysia is dependant upon the Straits of Malacca for resources, defence, shipping services, ports, tourism and facilitating external trade. About 139 fishing villages are located here and are dependant upon the fishing industry for its livelihood. Additionally major tourist centres are located along the straits such as Langkawi, Penang, Pangkor, Port Dickson and Malacca.[1]
Despite the presence of the Sunda straits and the Lombok Straits, the vessels still prefer the Straits of Malacca.
1.3.The waters of Straits of Malacca is fast becoming the dump-yard of oil spills, harzardous and noxious substances.
Generally, shipping, dumping, sea-bed activities and land-activities [2] have been identified as the four main sources of marine pollution.
For example ships driven by diesel-engines may discharge some oil with their bilge water and fumes discharged through their funnels into the atmosphere will eventually return to the sea. Similarly, ships using their fuel tanks for ballast water may discharge this oily ballast water into the sea. Furthermore, throwing of garbage overboard or discharging of waste directly in to the sea will also contribute to pollution. This is not an uncommon phenomenon at the Straits of Malacca considering the heavy volume of traffic using it.
Some oil, as well as other noxious cargoes like chemicals, liquid gases and radioactive matter, enter the sea as a result of accidents such as collisions, strandings and explosions. The higher the volume of ships traveling across the Straits of Malacca the greater the risk of such noxious substances entering the sea.
Dumping of waste from land-based activities such as radioactive matter, military materials (obsolete weapons and explosives), dredged materials is another undeniable source of pollution.
Industrial waste, debris and relatively small amount of oily and chemical waste from drilling on the sea-bed for oil and gas are also contributive factors.
Sewage and industrial wastes discharged into the rivers directly enter the sea from the land where they originate. Chemicals such as fertilizers, pesticides and so on aggravate the deplorable state of the Straits of Malacca.
1.4 The costs to Malaysia[3]
An exorbitant bill of costs confronts Malaysia as far as maintenance of pollution is concerned.
The Malaysian government has spent RM34 million to stockpile equipment to combat oil pollution in the Straits of Malacca. The private sector has spent another RM30 million under the auspices of the Petroleum Industry of Malaysia Mutual Aid Group (PIMMAG) and this does not include the cost of training, equipment replacement and manpower development.
Added to this, and unable to quantify, is the opportunity costs to Malaysia resulting from the impact of externalities created by foreign activities in the straits. This includes the destruction to ecosystem, destruction of livelihood of fishermen and the cost of maintaining the marine environment.
The overall costs to the Royal Malaysian Navy to provide hydrographic-related services in the Straits is estimated to have mounted to RM70 million between 1984 and 1993. The irony of the situation is that the hydrographic surveys are integral in navigation of foreign vessels and we bear the cost and suffer in silence !
It is surmised that with this mounting costs for maintenance of the Straits one day it is going to cause a big allocation of the national budget and economic deprivations and funding in other sectors of development shall be forestalled. Therefore the problem is crucial and must be addressed immediately.
1.5 . The international sea laws and the Straits of Malacca.
The UNITED NATIONS CONVENTION OF THE SEA III is the most authoritative and widely ratified international treaty. The Malaysian government has also ratified it.
Article 17 of UNCLOS 111 reads as follows :
“ Subject to this Convention, ships of all States, whether coastal or land-locked enjoy the right of innocent passage through the territorial sea. “
and innocent passage has been defined in Article 19 (1) of UNCLOS 111 as :
“ Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage take place in conformity with this Convention and with other rules of international law. “
In the light of the topic of discussion, it is only glaringly obvious that as far as the Straits of Malacca is concerned we are helpless in curtailing innocent passage despite the fact that the waters is our territorial waters ! Our hands are tied due to the supremacy tenor of the UNCLOS by its perpetrators despite knowing very well it is the foreign vessels that contribute to the marine pollution such as oil spills, hazardous and noxious substances in the Straits.
This high-handedness and aristocratic aloofness is reinforced everywhere. For example, the coastal states cannot even suspend temporarily (if important for the protection of its security ) the right of innocent passage through the straits since it is used for international navigation. And the absurdity is that such rules have been given cognizance and blessed by the International Court of Justice and in Article 16(4) TSC.
On one hand, pollution is despised internationally and yet on the other hand vide conventions and treaties the very pollution is given energy and impetus to grow. This is certainly the irony as far as the international laws governing the Straits of Malacca are concerned. They are the very root and obstacle in preventing pollution by oil spills, hazardous and noxious substances.
2. THE INTERNATIONAL CONVENTIONS AND DOMESTIC LAWS PERTAINING TO POLLUTION BY OIL SPILLS, HAZARDOUS AND NOXIOUS SUBSTANCES.
2.1. OIL SPILLS
Oil spillage is an absolutely pertinent and persisitent problem worth solving. For example, in the accidents involving the Showa Maru (1975), Diego Silang (1976), Maersk Navigator (1993) and Nagasaki Spirit (1992) a lot of oil was spilled. In the first three accidents an estimated 30000 tonnes of oil was spilled into the Straits of Malacca. In the case of Nagasaki Spirit it was 13000 tonnes of oil spillage. Compared with land-based sources, vessel-sourced pollution is one of the more and better internationally regulated areas of marine pollution.[4]
“ Oil ” is defined to mean any persistent oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil whether carried on board a ship as cargo or in bunkers of such a ship.[5]
Oil-spillage incurs cleanup cost and is a serious matter. The table below shall highlight the colossal amount of oil spillage and clean-up costs that have been incurred :
Cleanup cost of Major Oil Spills[6]
Showa Maru /Japan/1975
17700 metric tons
RM1250000
Diego Silang/Phillipines/ 1976
5500 metric tons
RM2661732
Nagasaki/Panama/ 1993
13000 metric tons
RM3690093
Others (minor)
13800 metric tons
RM113436
The domestic laws pertaining to oil spills are more often than not are the incorporation of international conventions into national laws, policies and programmes. Some of these are as expounded below to ascertain their effect on the domestic laws.
2.1(a).The empowering conventions, treaties, policies and programmes.
i). MARPOL 73/78
Significant among the conventions attempting to control marine oil pollution have been the International Convention for the prevention of oil Pollution 1954 (OILPOL), International Convention for the Prevention of Pollution from ships 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78). The increasing incidents of sea pollution caused by spillage and discharge of oil and oily mixture from ships are the reason for the MARPOL 73/78 Convention. The incident of Torrey Canyon in 1967 convinced all states to take precautionary steps tp prevent these damages and disasters from happening. Malaysia became party to Annexure I (oil) and II (Noxious Liquid Substances in Bulk) and the optional Annexure V garbage on 31 January 1997.[7] Three months later on 1 May 1997 it came into force.[8]
MARPOL 73/78 covers accidental and operational oil pollution as well as pollution by chemicals, goods in packaged forms, sewage, garbage and air pollution. The Convention does not apply to any warship and state ship being used for non-commercial services but applies to all ships entitled to fly the flag of the parties to the convention but which operate under their authority convention. It also does not cover dumping. Enforcement of the convention will be through laws enacted by the states which have sufficient force of sanction. Violations can:
a). invite the state taking action as per its jurisdictional rules or alternatively
b). the states shall release all information and evidences to the flag ship and on that basis the flag state shall take action. In the latter case, the flag ship will inform the referring state about the actions it has taken.
Other essential features of this convention are:
i). all ships shall hold a certificate of compliance with the convention standards.
ii). In the event of a substantial non-compliance, if evidenced, the port authority of the state party carrying out the inspection must take such steps as necessary to ensure that the ship shall not sail until it can proceed to sea without preventing an unreasonable threat of harm to the marine environment.
iii). Article 6 of the convention requires that all parties shall cooperate in the detection of violations and enforcement of the provisions. The flag state has also been required to initiate legal proceedings as soon as possible for violations of the convention on the basis of sufficient evidence.
Detailed pollution standards were set out in the annexures as indicated below:
1. Annexure 1 (with oil).
2. Annexure 2 (with noxious substances in bulk).
3. Annexure 3 (with harmful substances carried by sea in packaged forms).
4. Annexure 4 (with sewage)
5. Annexure 5 (with garbage) and
6. Annexure 6 (with air pollution).
MARPOL 73/78 has come into force and Malaysia has not ratified it fully . It has for example adopted only Annexures I, II and V. Singapore has already ratified MARPOL 73/78. It is opined that with this ratification, closer cooperation could be exploited among both countries for preventing marine pollution, particularly as regards oil spills, specifically in the Straits of Malacca . Nevertheless, while the MARPOL 73/78 did not directly necessitate the formulation of any domestic laws immediately, its influence have had far -reaching effects and this is undeniable. Upon Malaysia’s ascension to MARPOL 73/78, it immediately mandatory for all local ships to have the Malaysian Oil Pollution Prevention Certificate (M.O.P.P) and the International Oil Pollution Prevention Certificate (I.O.P.P) for International ships.[9]
ii). The International Convention for Civil Liability for Oil Pollution Damage 1969 (CLC Convention) and the 1971 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) .
The CLC Convention covers damage from oil escaped or discharged from the sea - going vessels or any seaborne craft. The exceptions are general cargo carriers and bulk carriers other than oil-carriers and tankers on ballast voyage. It fixes liability for damage caused by the oil pollution unless it is caused by the :
a. act of God
b. war
c. civil war hostilities and insurrection.
The amount of damage is limited to 133 SDR (Special Drawing Rights) ( 1 SDR is roughly equal to 13 US dollar) per ton with the maximum of 14,000,000 SDR. The CLC can be enforced by the member countries suffering from oil pollution. The member states are authorized to enforce the treaty law through an appropriate legislation.[10]
To cover the liability beyond the CLC, the Fund Convention was entered into and to make realistic a Protocol was also added to it in 1976. The Fund Convention provided remedy in the cases which are exceptions to the CLC. The fund is generated through statutory contributions from oil companies on imports greater than 150000 tonnes per year on a pro-rata basis. The maximum limit of payment through this fund is up to US $ 45000000 and is subject to constant reviews.
iii). The United Nations Convention on the Law of the Sea
Malaysia ratified the United Nations Convention on the Law of the Sea (UNCLOS) on 14 November 1996. Prior to the submission of the instrument of ratification however, Malaysia has already been implementing the various provisions of UNCLOS through two national laws namely the Exclusive Economic Zone Act 1984 and the Fisheries Act 1985. The EEZ Act is a mirror of Part V of UNCLOS III which governs State jurisdiction in the Exclusive Economic Zone over matters such as marine pollution prevention, management of fisheries resources and the conduct of marine scientific research.
Several avenues as regards marine pollution and matters attendant to it were widened by UNCLOS 111 namely:
· Article 192 LOSC proscribed that it was the general duty to protect & preserve the marine environment from pollution from all sources.
· Article 207 to 234 and 236 LOSC defined the jurisdictional rights and obligations (legislative & enforcement) of flag, coastal and port states.
· Other related art in Part XII (Protection and Preservation of the Marine Environment) deal with principles (art 192-6), global & regional cooperation (art 197-201), technical assistance(art 202-3),
· Articles 204-6 deal with the monitoring and environmental aspects while Article 235 deals with responsibility and liabilities thereof.
Coastal states however have argued for more responsibility to be borne by users of sea areas in the spirit of Article 43 (navigational and safety aids and other improvements and the prevention, reduction and control of pollution) of UNCLOS and the “polluter-pays- principle” [11].
2.1(b). The Domestic Laws pertaining to oil spills
i). The Merchant Shipping (Oil Pollution) Act 1994 (Act 55)
Malaysia is now party to both the International Convention for Civil Liability for Oil Pollution Damage 1969 (CLC Convention) and the 1971 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) .
The Act provides the procedure for identifying, investigating and ascertaining any claim. According to section 23 of the Act, the High Court shall have jurisdiction over cases under this Act. It is the Director of Marine (DOM) who is responsible for carrying out all or any of the powers and duties under the Act. The DOM or any authorized officer may arrest any responsible person and detain any ship. The ship may be released only on furnishing the required security.
It is to be noted here that the Merchant Shipping (Oil Pollution) Act 1994 fixes liability for pollution damage caused by a discharge or escape of oil in “any area of Malaysia”. Hence the pertinent itch remains – does this include only the territorial waters or also the exclusive economic zone ? Since the CLC Convention’s scope is not defined it is submitted that the exclusive economic zone is inclusive. However, since the Straits of Malacca only has territorial waters to be concerned with this remains a mere academic opinion irrelevant in the present context though useful elsewhere.
Section 3 of Part II of the Act on Civil Liability for Oil Pollution generally exhorts as thus :
(1).Where as a result of an incident taking place, any oil is discharged or escapes from a ship, the owner of the ship shall except as otherwise provided by this Act be liable for any pollution damage caused by such discharge or escape in any area of Malaysia.
(2). Further, the owner of the ship shall be liable for any pollution damage caused to any area of any other Liability Convention country as a result of any incident specified in subsection (1).
(3). Where oil has been discharged or has escaped from two or more ships, and pollution damage results therefrom, the owners of all the ships, unless exonerated under section 4 shall be jointly and severally liable for all such pollution damage which is not reasonably separable.
(This section is subject to exceptions as provided in section 4).
Section 491C of the Act, inter alia, stipulates the powers of the Director of Marine as thus :
a). to stop and board any ship in the Malaysian waters
b). inspect any permit, license, record, certificate or any other
document, detain such ship including cargo equipments etc
and
c). arrest any person whom he has reason to believe has
committed an offence under this Act. Anyone obstructing him
shall be liable for a fine not exceeding fifty thousand ringgit.
ii). The Exclusive Economic Zone Act 1984 (Act 311)
The Part IV of the Act deals with protection and prevention of the marine environment in the exclusive economic zone and the continental shelf and makes oil pollution, with certain exceptions, an offence liable to a fine not exceeding one million ringgit.
Cases against any offence can be instituted by any “authorized officer” which includes any Fishery Officers, any Port Officer, any Police Officer not below the rank of Sergeant, any Custom Officer, any Officer of the armed forces, any public officer or any other person appointed to be an authorized officer.
The Act provides for the arrest of the responsible persons and also provides for detention of the vessel which can only be released on appropriate security being provided.
Under this Act a prosecution case can be instituted under the Criminal Procedure Code in a Sessions or First Class Magistrate’s court. Also where a damage has been caused to any person or property or to any segment or element of the environment of the exclusive economic zone or continental shelf, compensation can be claimed, and for that, depending on valuations of claims, a case in the appropriate High Court, Sessions Court or Court of a Magistrate of the First Class can be filed.
The Act is certainly a precursor of Part V of the UNCLOS III.
iii). Fisheries Act 1985 (Act 317)
Fishing boats and vessels are powered by diesel-engines and thus pollution of oil into the sea is inevitable. It remains undeniable that most fishing vessels are diesel powered. Hence while they encroach into the Straits for fishing , the diesel-engines may discharge some oil with their bilge water and fumes discharged through their funnels into the atmosphere will eventually return to the waters in the straits. In this context, the Fisheries Act 1985 (Act 317 ) is obliquely relevant.
The Preamble of the Act circumscribes the Act to mean thus:
“ An Act relating to fisheries, including the conservation, management and development of maritime and estuarine fishing and fisheries, in Malaysian waters, to turtles and riverine fishing in Malaysia and to matters connected therewith or incidental thereto.”
In Part I, Preliminary section of the Act the word “pollutant” has been defined to mean:
“…any substance which, if introduced into the maritime or any riverine waters, is liable to create hazards to human heath or to harm aquatic living resources, or to damage amenities or interfere with other legitimate use of the maritime or riverine waters…”
It is humbly submitted here that oil spills are also embraced by the afore definition.
Section 25 is the general provision on offences created under the Act and reads as thus :
Any person who contravenes or fails to comply with any provision of the Act shall :
a. If foreign vessel a fine not exceeding one million ringgit for
The owner or master and one thousand ringgit in the case of every member of the crew.
b. in all other cases, to a fine not exceeding twenty thousand ringgit or a term of imprisonment not exceeding two years or both.
Section 15 requires foreign vessels loading or unloading any fish, fueling or supplying or transshipping any fish in the Malaysian fisheries waters to have the written approval of the Director-General of Fisheries.
Meanwhile, section 26 forbids fishing with explosives, poisons or pollutants or any apparatus using electric current and so on.
Therefore, by indirectly circumventing unlawful access into the Malaysian waters by foreign fishing vessels the Act purports to curtail oil spillage to an extent. The enforcement of the Act comes under the purview of the Fisheries Department.
iv). The Environmental Quality Act 1974 (EQA 1974)
The EQA 1974 defines oil to mean:
a). crude oil, diesel oil, fuel oil or lubricating oil or
b). any other description of oil which is prescribed by the Minister charged with responsibility for the environment by order in the Gazette to be oil for the purposes of this Act.
Section 27 of the EQA1974 stipulates thus :
(1).No person shall , unless licensed, discharge or spill any oil or mixture containing oil into Malaysian waters in contravention of the acceptable conditions specified under section 21.
(2).Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding (five hundred thousand ringgit) or an imprisonment not exceeding (five) years or both.
While the full ambit of enforcement is within the purview of the Director-General of Environmental Quality as defined in section 2 of the EQA 1974, the assistance of authorized officer may be sought. This is to include any fishery officer, port officer, police officer not below the rank of sergeant, customs officer, any officer of the armed forces, any public officer and any other person or class of persons appointed to be an authorized officer under section 39 of the EQA 1974.
2.2 HAZARDOUS AND NOXIOUS SUBSTANCES
Hazardous substances generally refer to :
· By-products generated in the production processes
· Sludge from waste- water treatment and
· Toxic items which expiry date has passed.
Noxious substances refer to any substance designated in the Appendix II Annexure 2 (with noxious substances in bulk) of MARPOL 73/78 or provisionally assessed under the regulations of Annex II as falling under category A, B, C or D as below :
Category A– Examples: Carbon disulphide, acetone cyanohydrins, cresols, naphthalene and tetraethyl lead i.e substances that can be a major hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category B- Examples : Carbon tetrachloride, ethylene dichloride and Phenol. i.e substances that can be a major hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category C- Examples : Benzene, styrene, toluene and xylene i.e substances that can be a minor hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category D- Examples :Acetone, phosphoric and tallow i.e substances that can be a minor hazard to either marine resources or human health and requiring stringent anti –pollution measures
2.2(a).The empowering conventions, treaties, policies and programmes pertaining to hazardous and noxious substances.
i). MARPOL 73/78
Despite the fact that the MARPOL 73/78 deals mainly with oil pollution it also covers accidental and operational pollution by chemicals, goods in packaged forms, sewage, garbage and air pollution. Furthermore, detailed pollution standards are set out in the annexures as indicated below:
1. Annexure 1 (with oil).
2. Annexure 2 (with noxious substances in bulk).
3. Annexure 3 (with harmful substances carried
by sea in packaged forms).
4. Annexure 4 (with sewage)
5. Annexure 5 (with garbage) and
6. Annexure 6 (with air pollution).
MARPOL 73/78 has come into force but Malaysia has not ratified it while Singapore has already ratified it. It is opined that if Malaysia also ratifies it then closer cooperation for preventing marine pollution, particularly as regards oil spills, in general in the Straits of Malacca can be obtained. Nevertheless, while the MARPOL 73/78 did not directly necessitate the formulation of any domestic laws its influence have had far reaching effects and this is undeniable.
ii).The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal 1989.
This convention is an essential convention as regards hazardous and noxious substances.
Article 4(2)(d) requires parties to ensure that the transboundary movement (including the sea) of hazardous and other wastes is “conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement.”
Article 4(7)(b) requires that such wastes be packed , labeled and transported in conformity with relevant “generally accepted and recognized rules and standards.”
Implicitly the Basel Convention connotes enforcement at the level of inspection of the noxious and hazardous substances and this is pertinent to ensure that these do not move to the sea to wreak havoc. Malaysia ratified the Convention on 8th October 1993 .
Some of the essential features of the Convention are provided below:
ARTICLE 1
Scope of the Convention
1. The following wastes that are subject to transboundary movement shall be “hazardous wastes” for the purposes of this Convention:
(a) Wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III; and
(b) Wastes that are not covered under paragraph (a) but are defined as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit.
2. Wastes that belong to any category contained in Annex II that are subject to transboundary movement shall be “other wastes” for the purposes of this Convention.
3. Wastes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials, are excluded from the scope of this Convention.
4. Wastes which derive from the normal operations of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention.
Article 2
Definitions
For the purposes of this Convention:
1. “Wastes” are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law;
2. “Management” means the collection, transport and disposal of hazardous wastes or other wastes, including after-care of disposal sites;
3. “Transboundary movement” means any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement;
4. “Disposal” means any operation specified in Annex IV to this Convention;
5. “Approved site or facility” means a site or facility for the disposal of hazardous wastes or other wastes which is authorized or permitted to operate for this purpose by a relevant authority of the State where the site or facility is located;
6. “Competent authority” means one governmental authority designated by a Party to be responsible, within such geographical areas as the Party may think fit, for receiving the notification of a transboundary movement of hazardous wastes or other wastes, and any information related to it, and for responding to such a notification, as provided in Article 6;
7. “Focal point” means the entity of a Party referred to in Article 5 responsible for receiving and submitting information as provided for in Articles 13 and 16;
iii).The United Nations Convention on the Law of the Sea
Article 195 of UNCLOS III imposes the duty on states not to transfer damage or hazards or transfer one form of pollution into another .
In addition to this the other aspects as proscribed are analogous to those in paragraph 2.1 a (iii) above on Oil Spills namely :
· Article 192 LOSC proscribed that it was the general duty to protect & preserve the marine environment from pollution from all sources.
· Article 207 to 234 and 236 LOSC defined the jurisdictional rights and obligations (legislative & enforcement) of flag, coastal and port states.
· Other related art in Part XII (Protection and Preservation of the Marine Environment) deal with principles (art 192-6), global & regional cooperation (art 197-201), technical assistance(art 202-3),
· Articles 204-6 deal with the monitoring and environmental aspects while Article 235 deals with responsibility and liabilities thereof.
These Articles obviously have contributed to the domestic laws pertaining to hazardous and noxious substances.
iv). Hazardous and Noxious Substances Convention (HNS) (1996)
Under the HNS Convention 1996, the shipowner is strictly liable for damage caused by Hazardous and Noxious substances (exclude radioactive matter).
The damage incurred may in the e form of loss of life or personal injury, loss of or damage to property outside the ship, loss or damage by contamination of the environment within 200 miles of land and the costs of preventive measures.`
The HNS Convention 1996 is analogous to the CLC Convention and CLC Fund set up for oil pollution and shall go a long way to benefit the affected states.
HNS and the CLC/Fund Conventions
The HNS Convention excludes pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage and the International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage, to avoid an overlap with these Conventions.
However, HNS covers other damage (including death or personal injury) as well as damage caused by fire and/or explosion when oils are carried.
2.2(b). The Domestic Laws pertaining to hazardous and noxious substances.
i). The Customs Act 1967 and orders thereof
Section 109 of the Act authorizes the power to search vessels in any customs port or within territorial waters. The officer concerned can examine all goods on board and all goods then being loaded or unloaded and also demand all documents which ought to be aboard the vessels.
Also by virtue of The Customs (Prohibition of Export) (No.2) (Amendment) Order 1993 and The Customs (Prohibition of Import) (No.3) (Amendment) Order 1993, hazardous wastes without an appropriate license can neither be imported nor exported. Violation of these orders is subject to a punitive measure. Thus entry into the Malaysian waters of any ship loaded with toxic wastes without a prior license will amount to violation of the Malaysian law.
The Custom Act and the attendant regulations are considered to be the best tool for implementation of the Basel Convention as the Department of Environment has no direct control over the importation or exportation of wastes or the ports which serve as a conduit for these transactions.
ii).The Environmental Quality Act 1974 and regulations thereof
Under section 29 of the EQA 1974:
“ No person shall , unless licensed, discharge(environmentally hazardous substances, pollutants or ) wastes into the Malaysian waters…” and
“ Any person who contravenes ……. shall be guilty of an offence
and shall be liable to a fine not exceeding (five hundred thousand ringgit) or to imprisonment not exceeding (five) years or both.”
According to the Act :
““Environmentally hazardous substances” means any natural or artificial substance, including any raw material whether in a solid or liquid form, or in the form of gas or vapour or in the a mixture of at least two of these substances or any living organism intended for any environmental protection, conservation and control activity which can cause pollution.”
Under the Environmental Quality (Scheduled Wastes) Regulations 1989 every generation of any scheduled waste shall be brought to the notice of the Department of Environment within the prescribed time and shall be disposed of at prescribed premises only. Dumping them into Malaysian waters will be a punishable act.
iii). Merchant Shipping Ordinance 1952 (Ord. 70/1952)
As regards hazardous and noxious substances, the above Act also is contributive in tackling the problem though the term used is “ dangerous goods”. It is submitted that dangerous goods also constitute noxious and hazardous substances.
For example under :
Section 289. Restrictions on carriage of dangerous goods.
(1) A person shall not send or attempt to send by any vessel, and a person not being the master or owner of the vessel shall not carry or attempt to carry in any such vessel any dangerous goods, without distinctly marking their nature on the outside of the package containing the same and giving written notice of the nature of those goods and of the name and address of the sender or carrier thereof to the master or owner of the vessel at or before the time of sending the same to be shipped or taking the same on board the vessel.
(2) Any person who fails without reasonable cause to comply with this section shall be liable for each offence to a fine not exceeding ten thousand ringgit, but if he shows that he was merely an agent in the shipment of any such goods as aforesaid, and was not aware and did not suspect and had no reason to suspect that the goods shipped by him were of a dangerous nature, then not exceeding one thousand ringgit.
(3) For the purpose of this Part "dangerous goods" means -
(a) aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer matches, nitroglycerine and petroleum;
(b) any explosives within the meaning of any written law in force in the Federation relating to explosives;
(c) any goods which by reason of their nature, quantity or mode of stowage are liable, either singly or collectively, to endanger the lives of persons on or near any ship, or to imperil any ship; and
(d) any other goods which may be declared to be dangerous goods by rules made or, as the case may be, having application under section 293.
293. Carriage of dangerous goods.
(1) The Minister may make rules for regulating in the interests of safety the carriage of dangerous goods in ships to which this section applies.
(2) This section applies to -
(a) all Malaysian ships whether such ships ply on an international voyage or not;
(b) .all other ships while they are within any port in Malaysia, or are embarking or disembarking passengers within the territorial waters of Malaysia, or are loading or discharging cargo or fuel within those waters.
(3)..Rules made under subsection (1) may prescribe such certificates as may be necessary for the purposes of the rules and may prescribe the fees payable in respect of such certificates.
(4). Until rules are made under subsection (1) , the rules made from time to time under the Merchant Shipping Acts with respect to the carriage of dangerous goods shall apply to ships to which this section applies.
(5). If any of the rules made under subsection (1) or, as the case may be, having application under subsection (4) , is not complied with in relation to any ship to which the rule applies, the person specified in the rules as being guilty of an offence for the non-compliance or, if no person is so specified, the owner or master of the ship shall be liable in respect of each offence to a fine not exceeding fifteen thousand ringgit or such lesser amount as may be prescribed in the rules for the offence, and the ship shall be deemed for the purposes of this Part to be unsafe by reason of improper loading.
2.3 . Other domestic laws indirectly tackling the problems of
Oil - spillage, hazardous and noxious substances.
(i). The Continental Shelf Act 1966 vide its section 6 provides for the making of laws to protect the living resources of the sea and the natural resources of the continental shelf from harmful agents.
While “harmful agents” are wide in its ambit, it is submitted that oil, noxious and hazardous substances come within its parameters for these too can wreak havoc to the natural resources in the sea.
(ii). The Petroleum Mining Act 1966
The Act purports to place restriction on petroleum exploring, prospecting and mining. Under section 3 (1) of the Act no person is to explore, prospect or mine without an exploration licence or a petroleum agreement.
These activities may be on land (including off-shore land adjacent to and contiguous with the on-shore ) and also “off-shore land” (i.e area of the continental shelf).
While these Acts do not directly curtail they do in a minimal manner cater towards tackling the problems of oil spillage, hazardous and noxius substances.
3. CONCLUSSION
While laws have been enacted, many following the international treaties and conventions the problem at the Straits of Malacca still pose as an obstinate impediment not to be easily circumvented. The domestic laws often require the enforcement of several bodies namely the Department of Marine, Customs, Department of Environment and the Attorney General’s Chambers (in matters of prosecution). In most of the laws the authorized officers can be from any of these departments and even the police.
What is important is not just domestic laws and their enforcement but commitment also by the user states. Mere lip service as to concerted efforts to combat the problem caused by their vessels is not sufficient. Only Japan has made some positive contribution. For example in 1981 it founded a revolving fund and it valued at 400 million yen. [12] This is to be used for immediate clean-up of oil-spills. Similarly the Japanese government has contributed 9973 million yen since 1976 to install navigational services in the Straits of Malacca. This is insufficient and the following questions remain :
Should Malaysia continue to subsidise the international community by providing free services for their use ?
What should be the form of contributions by the international communities to defray the costs of damage at the Straits of Malacca?
Who should pay for these and how ?
What institutions should be created to manage more effectively the services in the Straits of Malacca ?
Until these are answered and implemented accordingly the Malaysian government is definitively holding an economic time-bomb clicking away and waiting to blow the economic cake disproportionately sending ripples to the nation as a whole !
1] Lecture Notes by Pn. Wan Adibah Wan Dahalan., FUU UKM
[2] Pgs.329-333- The Law Of The Sea by R.R.Churchill and A.V.Lowe
[3] Pgs 135 and 136 –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.
[4] Pgs 127 and 128 –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.
[5] Preamble to the Merchant Shipping (Oil Pollution) Act 1994
[6] Pg 206 - The Straits of Malacca, International cooperation in trade funding & Navigational safety.
[7] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004
[8] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004
[9] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004
[10] http:www.imo.org/conventions
[11] Article – Protection of the Marine Environment from Sea-Bed Pollution – Mohd Nizam Basiron
[12] Pg 137- –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.
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