Layman's Guide to the Federal Constitution on Lina Joy's Case

by

Haris Ibrahim
(Haris Ibrahim is a trained lawyer)

How and where the two Muslims judges in the Federal Court erred in LAW in their majority decision on Lina Joy's appeal.

Read here on People's Parliament Blog and HERE

1. The SUPREME Constitution
   
   
2. Power to make law for persons professing the religion of Islam
   
   
3. The scope of this law-making power under Item 1, List 2, 9th Schedule
   
   
4. Part 2 of the Constitution: Fundamental Liberties Generally
   
   
5. Article 11(1) Guarantee
   
   
6. Syariah Courts are INFERIOR to Civil Courts
   

1. The Supreme Constitution

That‘s what Article 4(1) plainly states.

‘This Constitution is the SUPREME law of the Federation…’.

It means JUST THAT !

In Malaysia, there is NO HIGHER LAW than the Constitution.

The same clause goes on to provide that:

Any law passed after Merdeka which is inconsistent with the Constitution is, to the extent of the inconsistency, VOID .

Under the Constitution, ONLY Parliament and the State Legislative Assemblies may pass law. Except for the limited exceptions mentioned in Article 4(2) and the emergency provisions of Article 149, the effect of Article 4(1) is that:

Both Parliament and the state legislative assemblies are PROHIBITED from passing any law which is inconsistent with any provision in the Constitution.

2. Power to make law for persons PROFESSING the religion of Islam

This is a power that is given under Item 1, List 2, 9th Schedule (click here) of the Constitution to both Parliament and the various state legislative assemblies.

Parliament will pass laws for the Federal Territories whilst the legislative assemblies will pass laws for their respective state.

3. The scope of this law-making power under Item 1, List 2, 9th Schedule

The Constitution has only authorized the following laws :

Islamic law and personal and family law of persons PROFESSING the religion of Islam. You will note from the text that this general provision is followed with a list of specific subjects

For the creation and punishment of offences by persons PROFESSING the religion of Islam against the precepts of that religion

For the constitution, organization and procedure of Syariah courts which shall have jurisdiction only over persons PROFESSING the religion of Islam

Laws for the determination of matters of Islamic law and doctrine and Malay custom

Note and remember that the jurisdiction to pass Islamic law and to create and provide for punishment for ‘religious offences’ is subject to the constitutional limitation that these laws and offences can apply only to persons PROFESSING , and NOT to persons NOT professing, the religion of Islam.

Similarly, the Syariah courts created under laws passed are constitutionally limited in their jurisdiction over persons PROFESSING , and NOT over persons NOT professing, the religion of Islam.

Let’s set this out plainly:

1. Under Item 1, list 2, 9th Schedule, Parliament and the state legislative assemblies CANNOT make any law to apply to persons NOT professing the religion of Islam.
   
   
2. They CANNOT GIVE JURISDICTION TO Syariah courts over persons NOT professing the religion of Islam.

4. Part 2 of Constitution: Fundamental Liberties Generally

Part 2 of the Constitution comprises of 9 Articles, from Articles 5 to 13, under the heading ‘Fundamental Liberties’.

If you scrutinize these 9 provisions closely, you will note 4 very distinct categorizations with some degree of overlap between each.

1. The first category of liberties are those that are guaranteed only to citizens. These are to be found in Articles 9, 10 and 12. Lets call these the ‘citizens only’ category.
   
   
2. The second category comprises the remaining 6 Articles that guarantee the liberties in question to ‘person’ or ‘persons’. These would apply to citizens and non-citizens. Lets refer to these as the ‘person or persons’ category.
   
   
3. The third category I shall call ‘prohibitory’ Articles. The particular liberty is guaranteed by prohibiting the doing of certain acts. So, for example, Article 5(1) guarantees life and personal liberty by prohibiting the taking of either except in accordance with law.
   
   
4. The fourth and final category I shall call ‘conferring’ Articles. The particular liberty in question is expressly conferred as a right. Article 11(1) is an excellent example. The phrase ‘has the right’, confers the right.

I want to now focus on THREE Articles within the ‘person or persons’ category.

1. NO person shall be deprived of his life or personal liberty save in accordance with law - Article 5 (1)
   
   
2. ALL persons are equal before the law and entitled to the equal protection of the law – Article 8 (1)
   
   
3. EVERY person has the right to profess and practise his religion and, subject to Clause (4), to propagate it – Article 11 (1)

Article 5(1)

Given the nature of the guarantee under Article 5 (1), I think nobody will dispute that ‘NO person’ means just that. Every foreigner, Malaysian, Malay, Chinese, Orang Asli, child, adult, convict, all.

Describe a person, and such a person must necessarily be included in ‘No person’.

It is a guarantee to EVERY SINGLE PERSON on the face of this planet.

Article 8 (1)

I would also say that ‘ALL persons’ in Article 8 (1) must also be treated in the same way as ‘No person’ in Article 5 (1).

Article 11(1)

If you are in agreement, you then bear the onus to explain why, looking at the plain words of Article 11(1), ‘EVERY person’ should NOT also mean the same as ‘No person’ in Article 5(1).

In my view, ‘EVERY person’ in Article 11(1), then, must mean just that.

Every foreigner, Malaysian, Malay, Chinese, Orang Asli, child, adult,
convict, all.

Describe a person, and such a person must necessarily be included in ‘Every person’.

It is a guarantee to EVERY SINGLE PERSON on the face of this planet.

5. Article 11(1) Guarantee

Three (3) activities are GUARANTEED :

1. Profess:
   
   ‘Right to profess’, in my view, confers on ‘every person’, the right to hold and acknowledge faith in a ‘belief system’, whether God-based or not
   
   
2. Practice
   
   Right to practise’ relates to the ‘belief system’ professed, and guarantees to ‘every person’ the right to participate in, live and make manifest that participation in, the doctrines of that professed ‘belief system’.
   
   
3. Propagate. For the moment, let us disregard the third.
   

The Right to Profess and the Right to Practise

The right to profess, in my view, is both constitutionally and practically absolute.

The right to practise, though, may be limited to the extent as permitted under Article 11(5).

Let me illustrate my point (Satan worshipper)

You may be a staunch Satan worshipper.

Parliament may pass a law to ban Satan worshipping. The law, however, cannot reach into your heart and wrench out your belief. There is no way to stop you silently professing your belief.

As a Satan worshipper, your ‘belief system’ may advocate an annual sacrificial killing of a virgin.

Article 11(5), however, provides that the rights guaranteed under this Article do not permit acts ‘contrary to any general law relating to public order, health or morality.

By ‘general law’ is meant law applicable to ‘every person’.

Section 302 of the Penal Code makes murder an offence. It is a general law relating to public order. It applies to ‘every person’.

By virtue of Article 11(5) read together with section 302 of the Penal Code, your professed belief in Satan worship does NOT authorize your partaking in the ritual of virgin sacrifice

‘Right to profess’ is absolute. ‘Right to practise’ is subject to Article 11 (5) limitations.

For the sake of completeness, you should know that the right to profess and to practice is so entrenched that even in a state of emergency, where other fundamental liberties may be suspended, these Article 11 rights cannot be touched. See Articles 149 and 150 (6A).

Let’s close this part with the following observation based on the Constitutional provisions we’ve just considered.

Parliament and all the state legislative assemblies, in exercising their powers under Item 1, List 2, 9th Schedule in relation to the creation of Syariah courts or the passing laws for persons professing the religion of Islam, CANNOT MAKE LAWS INCONSISTENT WITH ARTICLE 11.

Syariah Courts are INFERIOR to Civil Courts
Read here for more

1. Firstly, the Syariah Courts have always been separate from the secular courts, dealing only with specific matters of syariah law that have been legislatively placed within their jurisdiction.
   
   
2. Secondly, the constitutional amendment of 1988 NEVER had the effect of 'elevating' the status of the syariah courts. Article 121 (1A) merely states that the secular courts referred to in Clause (1) 'shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts’.
   
   There is NOTHING in the language of Article 121 (1A) that would allow for a construction that the status of the syariah courts was being thereby altered.
   
   
3. Thirdly, Article 121 (1A), again by its very terms, does NOT raise the stature of the syariah courts to a position equal with the secular civil court system. This postulation, by implication, accepts that prior to the amendment of 1988, the syariah courts were, at least vis-a-vis the secular High Courts and Federal Court, INFERIOR.
   
   This implication, in my view, is correct and, for the reasons that follow, I contend that the syariah courts today continue in that status, that is, inferior courts.

The judicial arm of the government of the federation of Malaya, at the time of independence, was intended to comprise only the courts created under the unamended Article 121 (1) and (2).

These were the Federal Court and the High Courts of Malaya and Borneo. These were the superior courts created by the constitution.

The constitution allowed for the creation of inferior courts by federal or state law. These would include the inferior courts referred to in Article 121 (1) or the syariah courts referred to in Item 1, List II, 9th schedule of the constitution.

Later, the constitution was amended to include a new List IIA to the 9th schedule wherein, Item 13 allows for the creation of native courts by the legislative assemblies of Sabah and Sarawak.

These native courts, too, like the syariah courts created by state legislative assemblies pursuant to Item 1, were NEVER intended to form part of the judicial arm of the government of the federation.

Inferior tribunals

The enabling provisions of the constitution for the statutory establishment of courts have, since independence, been extensively utilized.

What has been put in place is an array of inferior tribunals adjudicating within a limited and often specialised jurisdiction, which may be conveniently divided into three categories.

1. The first category are those inferior tribunals ... (the statute) does not make any provision for appeal, but also expressly prohibits, by a privative clause, the decision of that tribunal from being questioned in any court.
   
   Such tribunals are the Industrial Court established under the Industrial Relations Act, 1967 and the Consumer Tribunal established under the Consumer Protection Act, 1999. Let us call this the ‘No Appeal’ category.
   
   
2. Secondly, statutory provision for an appeal process from those tribunals to an appellate tribunal of a similarly limited and specialised jurisdiction.
   
   An example of is the Rent Tribunal established under the Control of Rent Act, 1966 (CRA) which deals with rent control of premises completed before 31/1/1948. The CRA provides that appeals from any decision of the Rent Tribunal shall be to an Appeal Board whose decision is, again by way of a privative clause contained in the CRA, ‘final’ and cannot be questioned in any court.
   
   It is my contention that the Syariah Courts come under this category, provision being made in the relevant state and federal legislation creating the Syariah Lower and High Court to an Appeal Committee. Let us call these the ‘Specialised Appellate Tribunals’ category.
   
   
3. Finally, there are the Magistrates and Sessions Courts, established under the Subordinate Courts Act, 1948, whose decisions are appealable to the secular High Courts. Let us call these the ‘secular High Court Appeal’ category.

As stated above, the secular High Courts stand as the appellate courts to the Magistrates and Sessions Courts.

Additionally, the secular High Courts exercise supervisory powers of judicial review over the tribunals in :

• the ‘No Appeal’ category and
  
  
• the ‘Specialised Appellate Tribunals’ category (include the Syariah Courts).

The narration above clearly illustrates that since the inception of the federation, the Syariah Courts created pursuant to the enabling provisions of Item 1, List II, 9th schedule were part of the numerous inferior tribunals that adjudicated within their respective limited jurisdiction.

That the syariah courts were inferior tribunals and susceptible to the supervisory powers of judicial review of the secular High Courts is borne out by the decision of Mustapha Hussain J in Abdul Rahim Bahaudin v Chief Kadhi, Kedah (1983) 2 MLJ 370, where the High Court issued a writ of Prohibition to prohibit the syariah court from proceeding with criminal charges against the applicant, an acknowledged Ahmadia, following upon confirmation by the Fatwa Committee that the Ahmadia were NOT Muslim, so that the applicant was OUTSIDE the jurisdiction of the syariah court.

If the above narration is correct, it is my contention that the amendment to Article 121 in
1988 with the introduction of the new Article 121 (1A) :-

1) has NOT altered the status of syariah courts as inferior tribunals;

2) has NOT removed the supervisory powers of judicial review of the Article 121 high courts over the syariah courts; and

3) has NOT enlarged the judicial arm of the government of the federation to now include the syariah courts.

The amended Article 121 (1) now provides, inter alia, that the Article 121 High Courts ‘and such inferior courts as may be provided by federal law… shall have such jurisdiction and powers as maybe conferred by or under federal law’.

The supervisory powers of judicial review of the Article 121 High Courts as provided for under the Courts of Judicature Act, 1964, to this day, remain intact.

The new Article 121 (1A) states:

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts’.

The first point to be observed is that Article 121 (1A) is not couched in terms ordinarily framed in privative or ouster clauses, where the intention is to prevent the decision of a tribunal from being reviewed.

The language of Article 121 (1A) is so plainly unambiguous that recourse to any extrinsic aid for the construction of the same is uncalled for.

In this regard, the approach taken by the Court of Appeal in Sukma Dermawan (1999) 1 CLJ 481 to refer to Hansard in construing Article 121 (1A) may have led to a construction that simply cannot be reconciled with the plain words of the Article.

The construction adopted by the Court of Appeal that the purpose of the Article was to prevent the Article 121 High Courts from reviewing the decisions of the syariah courts, unless understood to be subject to the ‘Anisminic’ principle, may form the foundation for a contention that Article 121 (1A) had the effect of neutering the supervisory powers of judicial review of the Article 121 High Courts, offending a long established and accepted principle that the jurisdiction of a superior court might only be ousted by EXPRESS WORDS in a STATUTE or by NECESSARY IMPLICATION.

Secondly, Article 121 (1A) does NOT , per se, confer jurisdiction on the syariah courts but is merely declaratory of the consequences of the conferment of such jurisdiction.

Thirdly, the intended ouster of jurisdiction in Clause (1A) is directed at all the ‘courts referred to in Clause (1)’.

This would include the ‘inferior courts as may be provided by federal law’ referred to in Clause (1). It is therefore not open to argument that ‘inferior courts as may be provided by federal law’ referred to in Clause (1) also includes syariah courts established by Parliament pursuant to Item 1, List II, 9th schedule.

The language of Article 121 (1A) is plain and unambiguous.

“The High Court, in the plain and distinct language of Art. 121 (1A), has no jurisdiction in respect of any matter within the jurisdiction of the Syariah
Courts.”

It means, abiding by the meaning of unambiguous words, that :

1. the High Court will have no jurisdiction IF jurisdiction in respect of any matter is given to the Syariah Court, and that
   
   
2. the High Court will have jurisdiction if jurisdiction in respect of any matter is not given to the Syariah Court. Any other construction, verbis standum ubi nulla ambiguitas, is not permitted.”

Jeffrey Tan J in Shaik Zolkaffily Shaik Natar & Ors v Majlis Ugama Islam Pulau Pinang & Seberang Perai [1997] 4 CLJ 70.

Jeffrey Tan J found support for his construction of Article 121 (1A) in the following pronouncement of Harun Hashim SCJ in Mohamed Habibullah Mahmood v Faridah Dato' Taib [1993] 1 CLJ 264: “It is obvious that the intention of Parliament by Art. 121 (1A) is to take away the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah Court”.