THE Federal Court recently, in an 8-1 decision, struck down 16 Syariah enactments by the Kelantan state government as unconstitutional, and therefore void.
The two lawyers who brought suit argued that only the Dewan Rakyat has the power to enact criminal laws and that state assemblies can only enact laws related to the Islamic faith which excludes criminal law. But that claim pits parliamentary supremacy as superior to constitutional supremacy.
That also destroys the basic structure doctrine of a written constitution. The standard is whether legislation is unconstitutional, and not whether the written constitution defies legislation.
The other contentious issue is whether Parliament is competent to enact criminal laws for the Islamic faith.
At first blush, that argument advanced by Kelantan lawyer Nik Elin Zurina, and her daughter, evokes suspicions about whether they wholly understand the difference between constitutional supremacy and parliamentary supremacy.
The 16 enactments were made under the tenets of Islam enshrined in Article 11 Federal Constitution which safeguards freedom of religion. The Federal Court agreed with the plaintiffs that Syariah legislation is prohibited from enacting criminal laws as mandated in the Holy Quran.
That places freedom of religion in dire straits albeit that freedom is not absolute, and instead promotes federal criminal law into pre-eminence and prominence.
The Chief Judge of Sabah and Sarawak, in his sole dissenting judgment, wrote that the two lawyers did not have standing to cite the Kelantan enactments as unconstitutional as it should have been the federal government that should have initiated this action.
Lawyer Nik Elin Zurina agreed with this finding in a podcast aired recently by ‘Beyond The Headlines’. She quickly added that the Federal Court had granted leave and that eight Federal Court judges thought otherwise.
It’s alarming that one could claim freedom of religion from one corner of the constitutional mouth, and then claim exceptions, exclusions and exemptions from that freedom by articulating another constitutional provision from another corner of the supreme law of the land. You cannot have constitutional provisions conflicting with one another due to misconceived and mistaken interpretations of the doctrines of law in jurisprudence.
The Reid Commission which drafted and produced the Federal Constitution of 1957 was careful in inserting clauses that protected and immunised Islam from federal control or regulatory power because the State Rulers were accepted as Defenders of the Faith.
Today, we even have a Federal Minister of Islamic Affairs. Is that constitutional? There is no known constitutional amendment that contemplates such a federal appointment. It certainly doesn’t hide the political intention to usurp constitutional provisions without necessary amendment.
The weak argument that invalidating the Kelantan Syariah enactments does not undermine Islam is inappropriate and awkward given the position and status of Islam under Article 3 Federal Constitution which also safeguards all other religions that renders the nation secular. Here, legislation in the form of criminal law was on a collision course with the Federal Constitution. Parliamentary supremacy is not the norm in Malaysia.
The Federal Court reportedly left intact two enactments that were promulgated by the Kelantan state assembly. That is patent selection bias at its best. The apex court and federal law have done nothing to stop, outlaw and punish the deviants who advance pornography on the Internet, but it wants to dabble in Syariah matters.
Something stinks especially when government departments require appropriate wardrobe selections for women during official visits.
The federal government should have made an application to the Syariah courts about this matter because Article 121(1A) Federal Constitution, which came into force on June 10, 1988, grants exclusive jurisdiction to Syariah courts. Besides, Article 145(3) Federal Constitution ousts the jurisdiction of the Attorney General from instituting proceedings in a Syariah Court.
In other words, federal power is curtailed, and to a large extent limited in matters relating to Islamic enactments based on Syariah law.
Article 121(1A) and Article 145(3) therefore bind the Federal Court from any intrusion or interference into Islamic matters that are constitutionally the domain of Syariah Courts.
The Ninth Schedule, List II – State List (1) states that Islamic law and personal and family law of persons professing the religion of Islam remains within the jurisdiction of Syariah courts despite the Federal List claiming jurisdiction over criminal matters.
“Islamic law and personal law and family law,” as contained in the Ninth Schedule summons emphasis on the conjunction ‘and’ if it states that ‘Islamic law relates to family law,’ then it is clear that there are limitations imposed upon Islamic law. But that conjunction ‘and’ encompasses a whole array of civil and criminal laws in the Islamic faith that can be interpreted to be unfettered and therefore undisturbed by federal law despite contrary legislation. Again, Parliament is not supreme in Malaysia. The Federal Constitution is.
For instance, in case a trustee cheats in a wakaf matter that is under Syariah Court jurisdiction and the cheated person files a police report. Does section 420 of the Penal Code take precedence over a Syariah enactment? What if someone in a position of trust is accused of misappropriating Islamic religious revenue? Does federal law or Syariah law apply? This hypothetical must be addressed.
The proper course would have been for the Federal Court to weigh this matter carefully before adjudicating on the competency of the Kelantan state assembly to promulgate Syariah enactments.
The Federal Court should have consulted Islamic scholars who play a crucial role in Syariah courts when it comes to interpreting a Syariah criminal code based on the text of the Holy Quran. And the Federal Court could also have consulted others who know their way into the thickets and brambles of constitutional law especially in the context of religious freedom.
Another course of action that the Federal Court should have contemplated was to have consulted the YDPA and the Rulers, as Defenders of the Faith, to convene an Article 182 Federal Constitution (Special Court) to decide such matters relating to Syariah laws that seem to be at the crossroads with federal law. Whatever the Special Court would have decided would have certainly quelled and discouraged public discontent.
It is not so much a matter of Syariah enactments vis-à-vis federal criminal and civil laws. It is a matter of constitutional freedoms and safeguards. The federal government does not enjoy such constitutional protection as does Islam or other religions. The Head of the Federation is the YDPA who is also the federal Defender of the Faith.
It is worth noting that in the celebrated case captioned as Lina Joy v. Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLY 585, the Federal Court conceded the matter and issued to the Syariah Court’s jurisdiction because Lina Joy was born a Malay Muslim who sought to renounce her Islamic faith. Therefore, any relief lies within the jurisdiction of the Syariah Court. It is a matter of Islamic law.
The case Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Ors [1991] 1 CLJ (Rep) 77, [1991] 1 CLJ (Rep) 83, involved her son who died a Muslim. Here federal law granted jurisdiction to his mother (Dalip Kaur) who is seeking relief to determine the legal status of a person as to whether he or she is a Muslim or not. It had nothing to do with issues of the Islamic faith or Syariah law that applies to all Muslims.
In Majlis Agama Islam Pulau Pinang v. Isa Abdul Rahman and The Others [1992] 2 MLJ 244, the Supreme Court ruled that the High Court has jurisdiction to hear the case involving wakaf (trust) and that it is not hindered by Article 121 (1A) Federal Constitution to hear and determine any question on Islamic law. This is certainly unconstitutional and unjust to the tenets of the freedom of religion and Syariah law in particular.
An interesting case was brilliantly adjudicated in Rosliza binti Ibrahim v. Kerajaan Negeri Selangor and Majlis Agama Islam Selangor (February 5, 2021) when the Federal Court declared that expert Islamic scholars would be required to interpret Islamic law on the issue of a child born out of wedlock to a Muslim father and a Buddhist mother who decided to renounce Islam because she was not raised a Muslim, and had never practised the Islamic faith. The Federal Court should have followed this safe path in deciding on the Kelantan Syariah enactments to avoid public discontent.
The aforementioned cases merit a deeper understanding of constitutional law, implications of religious freedom, Syariah enactments and the jurisdiction of Syariah Courts. But these are civil cases that unfortunately have different yardsticks to measure jurisdictional issues vis-à-vis criminal matters. The Federal Constitution is screaming for necessary and needful adjustments and amendments when Article 162(6) Federal Constitution is seldom invoked by our judges.
The media also reported that PMX strongly maintained that ‘the Federal Court’s decision has nothing to do with the government.’ Maybe he is not aware that Article 132(1)(b) Federal Constitution places the judicial and legal service of the Federation under ‘public service’ which makes it very government. Maybe he meant to say the Federal Court’s decision was not political. Or maybe his advisors went off on a frolic of their own?
As this is written, there is still no Federal Court decision published concerning the 16 Kelantan Syariah enactments that were invalidated under federal law. What about non-Muslims? Are they protected under the freedom of religion safeguard afforded in Article 11 Federal Constitution? The Law Reform (Marriage & Divorce) Act 1976 (LRA 1976) supposedly excludes the application to persons professing the Islamic faith.
But section 51 of LRA 1976, said to be highly controversial, preserves the rights of and provides a remedy for the non-converting spouse to civil court jurisdiction.
Does the converted spouse’s reliance on Islamic law negate the non-converted spouse’s reliance on civil law jurisdiction? Which court’s reliefs and remedies apply in case both jurisdictions delivered judgments? The Federal Constitution has failed to spell this in unambiguous terms. Case law partially helps the public to come to grips with objective and subjective tests applied to judicial findings.
Several Malaysian cases including one from the Supreme Court, (Eeswari Visuvalingam v. Government of Malaysia [1990] 1 MLJ 86) declared that when the non-converting spouse does not petition for divorce, he or she remains a dependent of the converted spouse, entitled to a share of the marital and pension upon the death of the converted spouse estate.
It appears the converted spouse has no recourse to Syariah court jurisdiction. Is this fair, just and constitutional? Where is the safeguard of the freedom of religion?
However, in Letchumy v. Ramadason [1984] 1 MLJ 143, the non-converting spouse (the wife Letchumy) failed in her bid to seek relief and remedy because the High Court declared that she should have filed her divorce application on the ground of conversion and not on the grounds of irretrievable breakdown and the husband’s desertion. Procedurally, the court sank her vessel. Substantive rights went for a sixer.
Letchumy was vindicated by the Supreme Court in Tan Sung Mooi v. Too Miew Kim [1994] 3 MLJ 117 which declared that Letchumy was wrongly decided because the rights of both parties traversed both substantive and procedural issues. There was no mention of the use of Article 162(6) Federal Constitution to tweak, amend or even repeal an unjust law when it infringes on a constitutionally protected right.
Interestingly enough, in October 2015, a unanimous Federal Court declared cross-dressing (the Muhamad Juzaili and two other cases) as outlawed by the Negeri Sembilan Syariah enactment to be legal.
This case did not touch on Islamic law concerning transgenders, but it was decided purely on technical grounds. That does not shed any light on the freedom of religion except for the freedom of procedural law and its machinations.
What about Hindu, Sikh, Christian, Buddhist, Jain and Taoist marriages and divorces? What about atheists and agnostics?
Surely, Article 11 Federal Constitution confers upon all religions the right to institute and convene their very own religious courts to oust the jurisdiction of LRA 1976 because, politically, Malaysia supports constitutional and not parliamentary supremacy. If so, Article 11 Federal Constitution should and must subsume LRA 1976 in the ultimate analysis.
Ultimately, the religious freedom afforded by the Federal Constitution for Muslims is under attack following the recent Federal Court’s decision when what it decided and declared tells the public that Malaysia practices parliamentary supremacy. And, all willing unelected judges take an Oath to defend and uphold the Federal Constitution with all the bundle of rights intact while independence of the judiciary, meaning freedom from political interference, is enumerated in Article 162(6) Federal Constitution.
PMX should carefully weigh his options now to use his two-thirds majority in Parliament to draw deep lines where required to demarcate Syariah and civil court jurisdictions despite all the burdensome and conflicting constitutional provisions between the enumerated Federal, State and Concurrent Lists as to jurisdiction. Rojak jurisprudence is not tasty.
It begs the question: Is the Federal Constitution an evolving document, not static but dynamic, generally palpable since 1957 despite all the feeble, faulty and flawed constitutional amendments? The Indian constitutional lawyer B.R. Ambedkar wisely remarked that “however good a Constitution may be, if those who are implementing it are not good, it will prove to be bad.
However bad a Constitution may be, if those who are implementing it are good, it will prove to be good”.
Where does Malaysia stand today with concern, care, regard, reverence and respect for the Federal Constitution as the supreme law of the land?
The views expressed here are those of the writer and do not necessarily represent the views of the New Sarawak Tribune.
