PUBLIC LECTURE

BY

YAA TUN DATO’ SRI AHMAD FAIRUZ BIN DATO’ SHEIKH   ABDUL HALIM,

CHIEF JUSTICE OF MALAYSIA

 AT THE 19th SINGAPORE LAW REVIEW LECTURE ON THE 13TH MARCH 2006

AT THE AUDITORIUM, SUPREME COURT SINGAPORE.

‘RECENT DEVELOPMENTS IN MALAYSIA’S CONSTITUTIONAL LAW’

ﺒﺴﻢﺍﷲﺍﻠﺮﺤﻤﻦﺍﻠﺮﺤﻴﻢ

ﺍﻟﺴﻼﻤﻋﻠﻴﻛﻢﻮﺮﺣﻤﺔﺍﷲﻮﺒﺮﮐﺎﺗﻪ

His Excellency Dato’ N. Parameswaran,

High Commissioner of Malaysia to Singapore

Mr. Chan Sek Keong,

Attorney General of Singapore

The Honourable Court of Appeal Judges of Singapore and Federal Court Judges of Malaysia

The Honourable Court of Appeal Judges of Malaysia

The Honourable Judges of Supreme Court of Singapore

The Honourable High Court Judges of Malaysia

The Honourable Judicial Commissioners of Malaysia

Mr. Chan Sen Onn, Solicitor-General of Singapore

Mr Lee Seiu Kin, Solicitors General of Singapore

Professor Tan Cheng Han S.C.,

Dean Faculty of Law of the National University of Singapore

Chief Registrars Supreme Court of Singapore and Federal Court of Malaysia

Chief Editor of Singapore Law Review

Academic Staffs of the Faculty of Law,

National University of Singapore

Judicial Officers of Singapore and Malaysia.

Ladies and Gentlemen,

It is indeed a privilege and a great honour for me to have been invited by the Singapore Law Review to give this lecture. I must also thank the Rt. Hon Chief Justice of Singapore, the Hon Judges and the Hon Attorney General of Singapore for their presence here.  To me  Singapore and the then University of Singapore when it was at Bukit Timah campus bring back many fond memories. But I will not divulge them for now. However to the present students my advice is not to let each moment go to waste while you are here. Know the true value of time, snatch, seize and enjoy every moment. And in the process take care of the reputation of the Institution for ‘the reputation of a thousand years may be determined by the conduct of one hour’. (A Japanese proverb). Remember the adage: ‘Yesterday is already a dream, and tomorrow is only a vision, but today, well-lived makes every yesterday a dream of happiness and every tomorrow a vision of hope’

Ladies and Gentlemen,

The subject of my lecture this evening is ‘Recent developments in Malaysia’s constitutional law’. I chose this topic due to the influence of current events and issues that have made headlines in our local dailies. And I think it is also in tandem with the stated aim of the Review Lecture, namely, it ‘serves to promote the objectives of the Review in creating an awareness of current legal issues, as well as to promote legal thinking and discussion amongst law students.

Ladies and Gentlemen,

I have noted that the past speakers of the Review Lecture were luminaries in their chosen fields. Thus in accepting the invitation to deliver this lecture it was not without trepidation on my part. Anyway before proceeding further may I register a caveat. May I emphasize that in what follows, I may express my own personal views on the several issues raised. However, I am open to persuasion and may change my aforesaid views.  

Ladies and Gentlemen,

I propose to go back as far as 1988 in the legislative amendments primarily because the impact of some of the amendments from that year onwards manifested only in recent years either through executive actions or judicial pronouncements.

By section 8 of Act A704 which came into force on 10.06.1988, Article 121(1) of the Malaysian Constitution was amended. Previously it read:

“Subject to Clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status, namely … the High Court in Malaya … and … the High Court in Borneo … and in such inferior courts as may be provided by federal law.”

Today the amended Article reads:

‘There shall be two High Courts of co- ordinate jurisdiction and status, namely-

(a)        ……….. the High Court in Malaya ………..

and

(b)        ……….. the High Court in Sabah and Sarawak …….

(c)        (Repealed);

and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.’

The critical part of the amendment was the substitution of the phrase ‘the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law’ for the phrase ‘the judicial power of the Federation shall be vested in’. The question therefore is to what degree the common law jurisdiction of the High Courts, especially the inherent power, has been curtailed by the words ‘as may be conferred by or under federal law’.

Incidentally, judicial power was not defined in the previous Article 121(1). However the Supreme Court in Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311 (in the majority judgment) stated that judicial power was ‘broadly defined as the power to examine questions submitted for determination with a view to the pronouncement of an authoritative decision as to rights and liabilities of one or more parties. It is virtually impossible to formulate a wholly exhaustive conceptual definition of that term, whether inclusive or exclusive,..’. per Abdoolcader SCJ at p 317.

The concept of the sanctity of the basic structure of the Constitution in relation to the powers of the court under Article 121(1) had been raised in recent cases. But so far such argument has not found success with the courts. For instance in the case of Ahmad Yani Bin Ismail & Anor v Inspector General of Police & Ors [2005] 4 MLJ 636 the learned judge opined, with reference to section 25 of the Courts of Judicature Act and the inherent powers of the court, that it would be ‘‘wholly untenable that the words ‘as may be conferred’ which are simply qualified by the words ‘by and under federal law’ are to be construed without any limitation as to enable this court to extend the meaning that this court could invoke some other sources to determine the court’s power.’

Similarly in Filotek Trading Sdn Bhd v Buildcon-Cimaco Concrete Sdn Bhd [1999] 4 MLJ 268 another High court judge was also of the view that the ‘amendment has removed the vesting of judicial power of the Federation in the courts.’ He said that the ‘courts now have to look at the federal law to see whether they have jurisdiction or powers on a matter.’ And he went on to ask which ‘federal law provides for inherent jurisdiction? His view was that the only provision he could find ‘is O 92 r 4 of the RHC 1980, that too, if RHC 1980 can be considered as a federal law’. The learned judge further asked himself: ‘If that be the case, then the question is whether the provisions of O 92 r 4 RHC 1980 were affected by the amendments to art 121? Are those powers preserved by s 25 of the Court of Judicature Act 1964 notwithstanding any amendment to the Federal Constitution? Section 25 of the Act provides:

‘(1)       Without prejudice to the generality of art 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction.

(2)        Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule:

Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.’

And he concluded that ‘to read the provisions of s 25 of the Courts of Judicature Act 1964 to mean that whatever powers vested in the High Courts immediately prior to Malaysia Day will remain vested in the High Courts notwithstanding amendments subsequently made to art 121 of the Federal Constitution is not tenable. A good illustration is the amendment to that article by the addition of art 121(1A) (added by Act A704 effective from 10 June 1988). The Supreme Court and the Federal Court have on a number of occasions given effect to that amendment to the effect that where a matter falls within the jurisdiction of the Syariah Court the High Courts do not have jurisdiction over it — See Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1, Mohamed Habibullah bin Mahmood v Faridah bte Dato Talib [1992] 2 MLJ 793 and more recently Soon Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1994] 1 MLJ 690.

Indeed in Mohamed Habibullah, the Supreme Court disagreed with the view expressed by Edgar Joseph Jr J (as he then was) in Shahamin Faizul Kung bin Abdullah v Asma bte Haji Junus [1991] 3 MLJ 327 that art 121(1A) was rendered ineffective by the provisions of s 4 of the Courts of Judicature Act 1964.’

If the views expressed by the learned Judges were to be adopted as the true construction of the amended version of Article 121(1) then it will be not wrong to say that the Judiciary in Malaysia today is subservient to the wishes of the Legislature in which the Executive under the system of responsible government has to a large extent control of what legislations to enact. In other words its “judicial power would amount to ‘doing what you are told to do’”, per Abdoolcader SCJ in Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311.

Indeed the International Bar Association in its report had expressed concern on the effect of the amendment with the comment thus:

‘It seems to us that this amendment has had the effect of eliminating the inherent powers and jurisdiction of the courts. It therefore fundamentally disturbs the concept of the separation of powers and affects the ability of the judiciary to enforce fundamental rights. It tends to make the judiciary an arm of the legislature, an instrument of the executive.’

And the foregoing view finds support from the International Commission of Jurists which commented thus:

‘‘The formulation of 121 of the Constitution makes the High Courts’ jurisdiction and powers dependent upon federal law, ie the court has no constitutionally entrenched original jurisdiction. This undermines the separation of powers and presents a subtle form of influence over the exercise of judicial power. This makes the operation of the High Court dependent upon the legislature and is a threat to the structural independence of the judiciary.’ 

One may ponder if these criticisms or comments from such international bodies are justified? Are those who were once responsible directly or indirectly to the amendment justified in voicing their dissatisfaction today on the inability of judges to make decisions pursuant to an ‘inherent power’ to do justice?

The explanatory note in the Bill which introduced the amendment gave no real explanation other than stating that the proposed amendments seek to delete certain parts of the existing provision and to substitute them with what were proposed including the insertion of an additional Clause 121 (1A).  Hence giving the amendment its literal meaning, it is not therefore far-fetched to say that if Parliament today desires to further restrict on what types of cases the courts can adjudicate, such legislation may be intra vires Article 121(1).

I perceive one possible reason for the need to insert Article 121(1) was to accommodate Article 121 (1A) which reads:

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

Had the previous provision remained Article 121 (1A) would be quite meaningless as the Syariah courts (which are created by the States under the State List of the 9th schedule to the Federal Constitution) would have no exclusive jurisdiction as envisaged by that Article since the civil courts could rightly be entitled to rely on the fact that judicial power of the Federation is vested with them and thereby enabling them to exercise their inherent power to scrutinize decisions of the Syariah courts. With the amended Article 121(1) it might require more than a liberal interpretation to say that the civil courts today retain their residual inherent power to oversee decisions of the Syariah courts. Such interpretation would fly against the clear wordings of article 121 (1A). It was therefore unfortunate that in the recent controversial case of S. Moorthy there were many public comments made, including by those who were responsible for the promulgation of the amendment, saying that the courts did not have the courage to decide the case as justice demanded.

Anyway, there are judges who hold a different view on the residual powers of the courts despite the amended Article 121(1).

For instance in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145  Edgar Joseph Jr. FCJ said this at p 238:

“In my view, O 92 r 4 is a unique rule of court for while it neither defines nor gives jurisdiction, yet it serves as a reminder and confirmation — lest we forget — of the common law powers of the court, which are residuary or reserve powers and a separate and distinct source of jurisdiction from the statutory powers of the court.”

Order 92 r 4 reads:

‘For the removal of doubts it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court’.

The learned judge also said that even without the said Order the High Courts would still have the inherent powers similar to that of the High courts in the United Kingdom.  His reasoning is that supervisory jurisdiction of the courts is the creature of common law and such inherent power may be extended through judicial development and legislative intervention as for instance paragraph 1 of the Schedule read with section 25 of the Courts of Judicature Act 1964.

Although in the foregoing case the learned judge did not explicitly referred to the amended Article 121(1) it is implicit from what he said that the courts retain its inherent power notwithstanding the amendment.

In another recent case of  Megat Najmuddin Bin Dato Seri (DR) Megat Khas v Bank Bumiputra (M) Bhd [2002] 1 MLJ 385 the Chief Judge for Sabah and Sarawak in a majority judgment expressed his view that the inherent power of the Federal court has been preserved, firstly, by rule 137 of the Rules of the Federal Court 1995 which reads:

‘For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court’.

Secondly, by the application of the common law principle of inherent power of the court as envisaged by section 3 (1) (a) of the Civil Law Act 1956 which reads:

‘(1)       Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall-

(a)        in West Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7th day of April 1956;’

The case of Chia Yan Teck & Anor v Ng Swee Keat & Anor  [2001] 4 MLJ 1 was also cited in support.

May I, at this juncture,  emphasize the fact that despite section 25 Courts of Judicature Act, Order 92 rule 4 Rules of High Court 1980 and rule137 of Rules of Federal Court 1995 one must never lose sight of Article 4 of the Federal Constitution which provides that the Federal Constitution is the supreme law of the Federation.

Moving on to the view that the basic structure of the Malaysian Constitution is not sacrosanct, it has been contended that Article 159 arrogates the status of Parliament to a higher level than the Constitution itself. Such approach can be discerned in the case of Phang Chin Hock v PP [1980] 1 MLJ 70   in which it is said that there is nothing in the Constitution which prohibits its amendment.  Hence to say otherwise would make art 159 superfluous.

Article 159(1) reads:

‘(1)      Subject to the following provisions of this Article and to Article 161E the provisions of this Constitution may be amended by federal law.’

Meanwhile there are judges in some jurisdictions and some renowned jurists who have expressed a concept reflecting the inviolability of certain basic tenets in a written constitution. For instance Justice Michael Kirby of the High Court of Australia opined that the reason for judges to be jealous of their inherent powers ‘is partly because they tend to be challenged in cases revealing apparently serious abuses of power and partly because they give rise to a self-fulfilling assertion of power which may appear to conflict with the rule of law itself. The response of courts to such provisions has been described as a "polite rebellion". By techniques of strict construction and by ascribing to Parliament attention to basic rights which may sometimes seem naive, courts have found many ways to circumvent, over-ride or exclude the operation of such ouster provisions, where justice appeared to demand that course.’ [1]

Justice Kirby went on to highlight the legal theory first propounded by Lord Cooke (former Mr. Justice Robin Cooke[as he then was]) as early as when he was still the President of the Court of Appeal of New Zealand in the case of L v M [1979] 2 NZLR 519. On the legal position of an ouster clause to restrict the courts from performing their ordinary constitutional functions and wherein the Accident Compensation Commission of New Zealand enjoyed exclusive jurisdiction to determine whether a person had suffered personal injury by accident, he had this to say albeit obiter at page 527:

"It would be a strong and strange step for Parliament to attempt to confer on a body other than the Courts power to determine conclusively whether or not actions in the Courts are barred. There is even room for doubt whether it is self-evident that Parliament could constitutionally do so."  

And in another case of Fraser v State Services Commission [1984] 1 NZLR 116 also a New Zealand case a similar sentiment was expressed by Justice Cooke in this way at page 121:

"This is perhaps a reminder that it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them."

It is interesting to note that the constitutional provision whereby judicial power of a country is vested with the courts as in our previous Article 121(1) remains intact in some other jurisdictions. For instance Article 93 of the Singapore constitution states:

The judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force’.

The same position is maintained in Hong Kong under Article 80 of the Basic Law which reads:

‘The courts of the Hong Kong Special Administrative Region at all levels shall be the judiciary of the Region, exercising the judicial power of the Region.’

So too for the Republic of South Africa and India. In the case of Minerva Mills Ltd v Union of India AIR 1980 SC 1789 it was held by the Supreme Court of India that Article 368 of the Indian constitution ‘does not enable Parliament to alter the basic structure or framework of the constitution’. Hence the new clauses (4) and (5) of that Article which purported ‘to confer upon the Parliament a vast and undefined power to amend the constitution, even so as to distort it out of recognition’ were struck down as beyond the amending power of the Parliament. ‘Since the constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. The limitation of power cannot be destroyed. In other words, Parliament cannot, under Art. 368 expand its amending power so as to acquire for itself the right to repeal or abrogate the constitution or to destroy its basic and essential features’.

Article 368 (1) of the Indian Constitution provides:

Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.’

One may note that in essence Article 368(1) is not dissimilar to Article 159(1) of the Malaysian Constitution.

The next constitutional development is the insertion of Article 121(1A) by the same section 8 of Act A704 which came into force on 10.06.1988.  On literal reading of this new Clause to Article 121 it is plain that it was intended by Parliament to oust the jurisdiction of the civil courts from hearing any matter which is within the purview of the Syariah courts. Before the enactment of clause (1A) decisions of the Syariah courts can be reviewed by the High Courts.  This is best illustrated in authorities such as Commissioner for Religions Affairs v Tengku Mariam (1970) 1 MLJ 220), Napsiah v Abdul Majid (1969) 2 MLJ 174 and Roberts v Ummi Kalthom (1966) 1 MLJ 165.

In the case of Mohamed Habibullah b Mahmood v Faridah bte Dato Talib (supra) Harun Hashim SCJ (as he then was) confirmed the purpose when he said this of Clause (1A):

“…..it is obvious from the beginning that the makers of the constitution clearly indicated that the Muslims in this country shall be governed by Islamic Family Law as evident from the Ninth Schedule to the constitution …. ….what article 121(1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic Law…

…..It is obvious that the intention of Parliament by article 121(1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Courts, Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor”

However, the legitimate expectation that clause (1A) would end the conflicts between the Syariah & Civil courts was scuppered as subsequent cases would show.  This prompted Farid Suffian Shuaib in his book “Powers jurisdiction of Syariah Courts in Malaysia” at page 4 to write:

“It was hoped and expected that the amendment would reduce jurisdiction conflict and friction between Syariah Courts and Civil Courts ….. Unfortunately the conflict continues”.

For instance in the case of Shahamin Faizal Kang bin. Abdullah v Asma bte Haji Junus 1991 (3) CLJ 220  wherein the parties were Muslims,  an application was made for a writ of habeus corpus which in effect was an application for a custody of a six year old male child in the care of his natural grandmother. The learned trial judge assumed jurisdiction despite Article 121(1A) and rejected the contention that section 40(3)(b) of the Penang Administration of Muslim Law Enactment 1959 expressly gave to the Court of the Kathi Besar the power to determine actions in which all the parties were Muslims relating, inter alia, to “maintenance of dependents, legitimacy, guardianship or custody of infants” and for that reason  Article 121(1A) denuded the High Court in Penang the jurisdiction to entertain the application. The learned judge, Edgar Joseph Jr. J. (as he then was) held that he had the jurisdiction on the basis that the jurisdiction of the Kadi Besar was not exclusive.  He also referred to section 4 of the Courts of Judicature Act 1964 which reads:

‘In the event of inconsistency or conflict between this Act and any other written law other than the Constitution in force at the commencement of this Act the provisions of this Act shall prevail.’ 

The judge pointed out that except for section 5 (which came into force on 16.9.64) the Courts of Judicature Act 1964 came into force on 16.3.64 whilst Article 121 (1A) came into force only as recently as 10.6.88 by virtue of Act A704. Consequently the learned judge held that sections 4, 22 and 24 of Courts of Judicature Act 1964 gave the court jurisdiction to hear the application.  This position, however, was short – lived. The then Supreme court in a subsequent case of Mohamed Habibullah b Mahmood v Faridah bte Dato Talib (supra) unanimously rejected the approach taken by the judge in Shahamin (supra).

Mohamed Habibullah’s case (supra) was a case between husband and wife who were both Muslims.  The wife alleged assaults by the husband and hence applied for an injunction.  The High Court allowed the wife’s application. But on appeal the then Supreme Court held that clause (1A) of Article 121 took away the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah Court.[2] And the Court held that the matter between the parties as husband and wife was purely a matrimonial offence which came within the ambit of syariah law. 

In Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah (1999) 1 MLJ 489, the Federal Court considered whether the Syariah Courts’ jurisdiction could be implied from other provisions in statutes relating to Syariah Courts.  The appellant in this case was a Sikh and he converted to Islam when he was a minor.  Upon reaching 21 years old, he renounced Islam and executed deed poll declaring that he was a Sikh.  Before the High Court, he sought for a declaration that he was no longer a Muslim.  Respondent contended that the High Court had no jurisdiction since the matter came under the Syariah Court’s jurisdiction.  The High Court agreed with Respondent and dismissed the application.  On appeal, the Federal Court pointed out that all State Enactments and Federal Territories Act contain express provisions vesting the Syariah Courts with jurisdiction to deal with conversion to Islam.  Relying on Craies on Statute Law 7th edition page 112, Albon v Pyke (1842) 4 M & G 421,424, Bennion’s Statutory Interpretation 2nd Edition page 362, the Federal Court held that:

“when jurisdiction is expressly conferred on the Syariah Courts to adjudicate on matters relating to conversion to Islam … it is logical that matters concerning conversion out of Islam (apostasy) could be read as necessarily implied in and falling within the jurisdiction of the Syariah Courts.”

In coming to its decision, the Federal court inter alia considered the case of Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan (1997) 4 CLJ supp 419 which held that if the State Legislature, although given the power to legislate on matters under the State List, does not as yet do so, then that will not detract from the fact that those matters are within the jurisdiction of the Syariah court within the contemplation of item 1 of the State List.  The Federal Court also considered the case of Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang (1996) 3 CLJ 23 where Abdul Hamid J. (as he then was) held that the State Legislature must first, according to Articles 74 & 77 and the State List, enact laws conferring jurisdiction on the Syariah Court.  Only then will the matter come under the jurisdiction of the Syariah Court.

(The same learned High Court Judge in Abdul Shaik b. Md. Ibrahim v Hussein b Ibrahim (1999) 5 MLJ 618 referred to the relevant phrase in the State List which reads.  “…. the constitution, organization and procedure of Syariah Courts which shall have jurisdiction over…. and in respect only of ANY of the matters included in this paragraph (emphasis added)”.  The learned judge stressed on the use of the word “ANY” which, according to him, can only mean that when a State Legislature makes laws establishing the Syariah court, it can choose from amongst the matters enumerated in the State List which of them it wants to confer jurisdiction on the Syariah court.)

Having considered those cases, the Federal Court then said:

“Whilst we agree with the approach adopted….  that when there is a challenge to jurisdiction the correct approach is to look at the State Enactments to see whether or not the Syariah courts have been expressly conferred jurisdiction on a given matter, with respect, we do not agree with his Lordship’s conclusion that since the Penang Enactment did not expressly confer jurisdiction on the Syariah court over the matter raised, there was no impediment for the civil court to hear and dispose of the matter.”

It is of interest to note that the Federal court seems to support both the opposing approaches adopted by the High courts thus further prolonging the existing confusion. The debate is therefore likely to continue unabated contrary to what was said in Mohamed Habibullah’s case (supra).

Indeed legal commentaries have been made on the flaws in the rationale of the decision in Soon Singh (supra). One writer wrote: ‘apostasy raises critical constitutional issues about freedom of religion and the Federal Courts’ decision in this case, overruling Lim Chuan Seng v. Pengarah Jabatan Agama [1976] 3 CLJ 231 amounts to a refusal to recognise the constitutional issues involved and an indefensible delegation of its duty to the syariah courts [3].

The case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor (1998) 4 MLJ 742 (HC), (1999) 1 MLJ 266 (CA), (1999) 2 MLJ 241 (FC) presented the civil court the first opportunity to examine the conflict of jurisdiction in matter of offences since the insertion of Article 121(1A).  This case originated from the Sessions Courts wherein the petitioner was charged with the offence of gross indecency under section 377D of the Penal Code. He pleaded guilty and was sentenced to six months imprisonment.  He then applied for a writ of habeas corpus.  He contended that the Sessions Court had no jurisdiction to try him on the charge preferred against him.  He claimed that being a Muslim only the Syariah Courts had jurisdiction to try him for the offence of “liwat” under the Syariah Criminal Offences (Federal Territories) Act 1977.  The Federal court in approaching the issue agreed that Article 121(1A) “was to stop the practice of aggrieved parties coming…… to get the High Court to review decision made by Syariah courts.  It also held that article 121(1A) should not be construed literally as it would give rise to consequences which the legislature could not possibly have intended.  The court preferred “to construe both clauses (1) and (1A) of article 121 together and choose a construction which will be consistent with the smooth working of the system which this article purports to regulate, and reject an interpretation that will lead to uncertainty and confusion into the working of the system”. The court then proceeded to apply ‘the provisions of sections 59 of the Interpretation Act so that where an act or omission is an offence under two or more written laws the offender may be prosecuted and punished under any of those laws, so long as he is not prosecuted and punished twice for the same offence’. The final decision of the court is that ‘where an offender commits an offence triable by either the civil court or a Syariah court, he may be prosecuted in either of those courts’.

One may note again that the decision of the Federal Court does not seem to have resolved the apparent conflict of jurisdiction between the civil courts and the Syariah courts arising from the incorporation of Article 121(1A) into the Constitution.

Item I of the State List provides that Syariah courts shall ‘have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law.’ To date the federal law which has conferred jurisdiction to Syariah courts in respect of offences is the Syariah Courts (Criminal Jurisdiction) Act 1965. And interestingly the jurisdiction is limited to such offences that are punishable with maximum three years jail, RM5,000 fine and six lashes. Hence there is a looming constitutional issue on the position of the Hudud laws enacted by some States in Malaysia which provide for higher penalties than allowed by the 1965 Act.

It is against this background that the most recent and controversial case involving Article 121 (1A) burst upon the Malaysians’ consciousness when the High Court on 28.12.2005 in the case of Kaliammal a/p Simnasamy v Pengarah Jabatan Agama Islam  Wilayah Persekutuan (JAWI) and 2 others (commonly known as the Moorthy case) took the view that it lacks jurisdiction and the power of judicial review over a Syariah court decision. Briefly, in this case, the applicant who is a Hindu, married one Moorthy a/l Maniam who was also a Hindu, on 25.11.1995.   Upon his demise the applicant claimed that her late husband had never told her of his new faith and that he was in fact practicing the Hindu faith at all times. With a view to resolve the impasse the Federal Territory Islamic Council filed an ex-parte application to the Syariah court and obtained an order therefrom which inter alia declared that the deceased was a Muslim at the time of his death, that the deceased was to be buried according to Islamic rites and that the deceased had never renounced his faith in Islam.   Meanwhile the widow also applied to the High Court Kuala Lumpur for inter alia, a declaration that the deceased was a Hindu. Unfortunately by the time her application was heard the Syariah court had already made its decision. The High court dismissed her application on the ground that it lacked jurisdiction by virtue of Article 121(1A).

The widow is a non-Muslim. Thus she is not entitled to appear before the Syariah court since paragraph 1 of the State List expressly states that Syariah courts ‘shall have jurisdiction only over persons professing the religion of Islam..’. At the same time Article 121(1A) is a hurdle for her to cross when seeking remedy in the civil court. Hence, based on the decision of the High court she appears to have no forum for redress. The widow is appealing to the Court of Appeal against the decision of the High court.

Incidentally soon after the Moorthy’s case another similar case came into public attention. It is commonly known as the ‘Nonya’s case’. Briefly, a Malay lady married a Buddhist man and adopted his religion after the marriage in 1936. In 1986 she gave a written declaration to the Alor Gajah Religious office and the Mahkamah Kadi that she wanted to live a Buddhist and be buried as one.  Investigation was then carried out by the Alor Gajah District Religious affairs officer who concluded that she had no intention to return to Islam. But when she died at the age of 89 years old a dispute still arose as to which religious burial rite applied. The matter was brought before the Seremban Syariah High court to determine her religion before her death. Affidavits from the non-Muslim relatives of the deceased were accepted by the court in its deliberation. In its final decision the court declared that the deceased was not a Muslim at the time of her death. She was therefore given a Buddhist burial rite. The reason for my referring to this case is to highlight the fact that the Syariah High court did not have any problem accepting affidavit from non-Muslims. Could this be an answer to the apparent conflict so far between the Syariah courts and the Civil courts despite the insertion of Article 121(1A)? I think the question requires further study before a conclusive answer can be made.

Concomitant with the issues mentioned above is the difficulty and often emotive question of apostasy.  This naturally involves the question of fundamental rights.  The proponents of the fundamental rights of freedom of religion under Article 11 of the Federal Constitution have unflinchingly declared that theirs is so deeply entrenched that it would be in violation of their basic human rights should they be deprived of choosing their own religion.  Article 11 reads:

‘(1)       Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.

Incidentally, there is nothing in the Constitution which explicitly deals with converting out of one’s religion. But such subject is mentioned in Article 18 of the International Covenant on Civil and Political Rights 1966 and Article 18 of the Universal Declaration of Human Rights.

Since the inception of the Constitution Article 11 has its fair share of judicial scrutiny. In the case of Minister For Home Affairs, Malaysia & Anor v Jamaluddin Bin Othman [1989] 1 MLJ 418, the respondent was detained under section 8 of the Internal Security Act 1960 on the grounds that he was involved in a plan or programme to propagate Christianity among the Malays and that his activities could give rise to tension and enmity between the Muslim community and the Christian community in Malaysia and could affect national security. The High court granted his application for habeas corpus on the basis that the ‘Minister has no power to deprive a person of his right to profess and practise his religion which is guaranteed under art 11 of the Federal Constitution and therefore if the Minister acts to restrict the freedom of a person from professing and practising his religion, his act will be inconsistent with the provision of art 11 and therefore any order of detention would not be valid.’ The appeal by the Minister to the then Supreme court was dismissed for the reasons that the grounds relied upon by the appellant to detain the respondent were insufficient in that they did not state what actions did he do other than attending and participating in meetings and seminars. Further, the allegation that he converted six Malays to Christianity, even if true, could not itself be regarded as a threat to the security of the country. And the court added a rider to what the High court had said with this observation:

‘The freedom to profess and practise one’s religion should not be turned into a licence to commit unlawful acts or acts tending to prejudice or threaten the security of the country. The freedom to profess and practise one’s religion is itself subject to the general laws of the country as expressly provided in cl (5) of art 11 of the Constitution which states that:

11(5)    This article does not authorize any act contrary to any general law relating to public order, public health or morality.

This is also alluded to in Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119. Thus the protection conferred by art 11 of the Constitution cannot be a complete umbrella for all actions.’

The case of Kamariah bte Ali dan Lain-lain lwn Kerajaan Negeri Kelantan dan Satu Lagi [2005] 1 MLJ 197 involved the issue of jurisdiction of the Syariah court over persons who are no longer professing the religion of Islam. Article 11 was cited as the authority to say that upon declaration by the plaintiff that she had renounced the religion of Islam the Syariah court had no longer jurisdiction over her. But the Federal court did not find the argument relevant to the facts and circumstances of the case. It therefore proceeded to hold that as the plaintiff was still a Muslim when the acts complained of were committed the Syariah court had the jurisdiction to try her.

Another interesting case is that of Lina Joy v Ketua Pengarah Pendaftaran Negara [2005] 6 MLJ 193.  It began in the High court with the appellant seeking for a declaration that she was no longer a Muslim with consequential orders prayed for substantially premised on Article 11. However the court refused to grant the declaration prayed for as the learned judge was of the opinion that on matter pertaining to renunciation of the religion of Islam the proper forum is the Syariah Court. On appeal to the Court of Appeal the issue on Article 11 per se was not pursued. Instead learned counsel for the appellant opted for the stand that the appeal should proceed to only consider whether the National Registration Department (NRD) was correct in interpreting the relevant Regulations in respect of the application by the appellant to change particulars in her Identity card, specifically for the deletion of the word “Islam’ therein. In short the appeal turned on to be an administrative law issue. The court handed down a split decision with two appellate judges in favour of dismissal while one appellate judge viewed that the appeal should be allowed.

The majority judgment is of the view, inter alia, that the NRD was correct in its decision not to allow the application of the appellant to have the word ‘Islam’ deleted from her Identity card simply because she failed to satisfy the department as required by the relevant regulations under the National Registration Regulations 1990 that she had renounced the religion of Islam. And that the department was entitled to come to that decision since the proper authority to determine on Islamic law including renouncement of the religion is the Syariah court and not the department. Accordingly the majority judgment held that the department did not err in law in the sense of being unreasonable or irrational in its decision not to grant the application of the appellant for the deletion of the word ‘Islam’ in her Identity card. It is to be noted that for Muslims it is provided under the Regulation that their religion must be stated in their Identity cards.

The minority judgment took a different view preferring to hold that an order from the Syariah Court would not support the accuracy of the particulars that the appellant was a Christian. The judge went on to say that by requiring the production of the order or certificate from the Syariah court the Director General of NRD took into account an irrelevant consideration when deciding not to effect the amendment to the appellant’s Identity card. The matter is now before the Federal court for leave to appeal.

One other notable recent development under the fundamental rights provisions of the Constitution is on the interpretation of Article 5 (1). In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 the Court of Appeal when interpreting Articles 5 and 8 departed from the ‘‘traditional and doctrinaire limits’ and went on to say that judges should, when discharging their duties as interpreters of the supreme law, adopt a liberal approach in order to implement the true intention of the framers of the Federal Constitution. Such an objective may only be achieved if the expression ‘life’ in art 5(1) is given a broad and liberal meaning.’

Hence, the expression ‘life’ appearing in Article 5(1) was interpreted to mean more than mere existence. It is extended to mean ‘all those facets that are an integral part of life itself and those matters which go to form the quality of life.’ Some of the those facets are the right to be gainfully employed including employment in a public service and to receive all the benefits and facilities that are being offered in the country such as right to live in a reasonably and healthy environment.

The foregoing view received tacit approval by the Federal court in R Rama Chandran (supra) when Edgar Joseph Jr. said this at page 190:

‘And, ‘life’ in Art 5(1) of the Constitution, as ……….said in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 at p 288, is wide enough to encompass the right to be engaged in lawful and gainful employment.

Conclusion

There is no dispute that a written constitution must be viewed by a judicial arbiter as a living document sensitive to the needs of the time if it is to be relevant and beneficial as a sacred covenant between a state and her people.  Hence, there is no question of it being cast in stone immune from any change or development by way of positive amendments by Parliament or judicial pronouncements. And the Malaysian Federal Constitution is no exception as I have just attempted to demonstrate. But ideally any amendment or development in constitutional law should only be made to meet the needs of current environment and circumstances and for the betterment of human life in this planet.

Thank you, ladies and gentlemen.



[1] Speech given at the conference Auckland 4th-5th April 1997- The struggle for simplicity.

[2]  But Article 121(1A) has also been interpreted to mean that it is meant for Muslims only and a spouse of a new covert who remains a non-Muslim is not bound by any order of the Kadi’s court: see- Ng Siew Pian lwn Abd Wahid Bin Abu Hassan, Kadi Daerah Bukit Mertajam & Satu Yang Lain [1992] 2 MLJ 425

[3] Jurisdiction of State authorities to punish offences against the precepts of Islam: A constitutional perspective – Professor Shad Saleem Faruqi – INSAF Vol. XXXIV No. 1