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ON TRIAL: Constitutional supremacy and religious freedom




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.


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