Many would have read today of the constitutional challenge that is taking place in the Federal Court. Media reports have been ambiguous, some wholly inaccurate, to the extent that the proceedings and their significance have been somewhat distorted.
Let me first disclose that I act as counsel to Abdul Kahar and the 2 others.
The applicants Abdul Kahar and 2 others have been charged with various offences under the Selangor Islamic Criminal Law Enactment. These in essence go to Kahar and the 2 others having practiced a form of Islam declared to be deviant by the Selangor Fatwa Committee and range from conceiving the purportedly deviant Islam to insulting Islam to disseminating information about the purportedly deviant Islam. The three are challenging the constitutionality of the provisions of law under which they have been charged competency on the basis that the Selangor State Legislative Assembly had no power to enact those provisions of law.
The Law Making Scheme
To appreciate the basis of the challenge, one must first understand the law-making scheme provided for under the Federal Constitution. As a general principle, the laws that are applied in Malaysia are written laws created by the legislative bodies of the nation. Malaysia being a federal system has a central legislative assembly, Parliament, and at the state level, State Legislative Assemblies.
It is not the case that these legislative bodies are free to make law as they please. In order to ensure a coherent system of law-making, the Constitution defines the areas or fields in which these bodies can do so. The Constitution sets out in its 9th Schedule, three lists of competence. List I is the Federal List and provides for matters over which Parliament can make law. List II is the State List and provides for matters over which the State Legislative Assemblies can make law. List III is a concurrent list over which Parliament and the State Assemblies can make law. The provision which vests power in the legislative bodies is Article 74 that, in essence, describes how Parliament makes federal law and the State Assemblies, State law.
It is important to bear in mind that the Constitution does not envisage the establishment of any other legislative body. The Constitution being supreme, law enacted in Parliament or the State Assembly can create no additional legislative body, in whatever form. Having said that, as the Cabinet cannot be expected to make decisions on everything), the power to make decisions of an administrative nature (town planning, building permits, licensing of establishments) is allowed in law to be delegated. With delegated administrative power has come delegated legislative power. We often hear or read of Ministers making regulations. This is an instance of the delegated legislative power. In the case of delegation of legislative power, the delegation is by the legislative bodies. This delegation is more usually clearly expressed in the principal or substantive laws that are made by these bodies.
Delegation of this nature is acceptable in law as long as the delegation is not excessive. It is excessive where the delegation of power is over matters of essential legislative nature that is of a ‘principal’ or ‘substantive’ nature. Where a law has that effect, the courts have struck down these laws for having been made without power (the delegation is considered not to be valid). Put another way, as long as the delegation of power is over matters of an administrative nature, the delegation is good. If it is otherwise, the delegation is considered invalid.
To ensure the proper exercise of power by Parliament and the State Assemblies, the Constitution provides a mechanism by which challenges can be made directly to the Federal Court. This is known as an Article 4(4) challenge. The Federal Court here acts not as an appellate court but rather a review court. This challenge is mounted in two stages; first, an application for leave to commence the challenge and second, if leave is obtained, the substantive challenge itself. This is a rarely invoked process and concerns only the question of power to make law. Other aspects of constitutionality such as whether a law contravenes a fundamental liberty do not fall within the purview of such challenges.
Islamic Criminal Law
It is crucial to note that substantive criminal law falls within the Federal List and is as such, Federal law. This explains why criminal laws in general are contained in Acts of Parliament (as opposed to State Enactments). The State List does however allow for the enacting of Islamic laws over matters enumerated in the list. For clarity, I reproduce below the item (Item 1) that provides for this:
“Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the DEFINITION and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, Organisation and procedure of Syariah courts, which 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, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”
The portion that I have emphasized sets out the power to create offences where Islam is concerned. This limited extent of this power needs to be appreciated. The State Assembly has only a limited power to create offences where Islam is concerned. The offences that the State Assembly has the power to create are offences against “precepts of Islam” which are not matters falling within the ambit of the Federal List. This second aspect is significant as the Federal List sets out an extensive field of competence where criminal law is concerned. This was the basis of the Article 4(4) challenges brought by Zaid Ibrahim against the Kelantan and Trengganu State Governments over the Islamic Criminal Law Enactments passed by the PAS led governments. Zaid contended that the matters provided for under these enactments were matters within the ambit of Parliament’s power to make criminal law. The Federal Court granted leave to challenge, with the Federal Government supporting Zaid. The substantive challenges were never heard as Zaid recently withdrew the proceedings.
Regrettably, the Constitution does not define the phrase “precepts of Islam” and its meaning has thus far been left open to debate. The ambiguity has become a battle ground in a scenario where the rule of law is becoming ambiguous, in part due to Islamization trends.
It is open to argument that in making Islamic Criminal Laws the State Assemblies have allowed for the creation of offences other than offences against the “precepts of Islam”. Insulting a religious officer, for instance, may not be a nice thing to do but is it an offence against a “precept of Islam”. In the same way, some will argue that acting contrary to a fatwa is not an offence against a precept. In June 2006, the Federal Court heard the main part of an Article 4(4) challenge brought by a man named Sulaiman Takrib in respect of several provisions of the Trengganu Syariah Criminal Offences (Takzir) Enactment as well as sections in the Trengganu Administration of Islamic Law Enactment. There, like in the Kahar challenge, an argument was made to the effect that the Fatwa Committee was making substantive law and that the offences Sulaiman was charged with – acting contrary to fatwa, disseminating material contrary to hukm syara’ - were not precepts offences. Expert opinions were provided one of which (by a learned and recognized scholar base in Malaysia) went so far as to say that the offence were not precept offences. The Federal Court reserved its judgment and is yet to deliver it.
Fatwas As Law
Additionally, it is to be noted that in the general scheme of things, the Fatwa Committee issues a fatwa upon any matter it decides it wishes to (and judging by the range of fatwas issued, these committees do not feel themselves to be restricted. See e-fatwa portal). Upon being so issued, these fatwa have the effect of informing opinion as to what is Islamic or not. Upon these fatwa being gazetted, they have force of law as the enactments more usually provide for gazetted fatwas to be binding on Muslims and authoritative in syariah courts. At no point in time are these fatwa referred back to the relevant State Assembly for its endorsement. The net result is that persons other than those elected for that purpose in effect make law. This, I believe, is not constitutional.
The scenario is made more complicated by the fact that in many instances, the primary offence is one of acting contrary to fatwa. In Selangor, there is a gazetted fatwa that declares haram the act of smoking. This means that any Muslim smoking a cigarette is committing an offence, not of smoking but of acting contrary to fatwa.
Alternatively, fatwas are made the foundation or touchstone of other offences. For example, if a person were to be charged with being a deviant, in order to know whether that person was a deviant, his conduct would have to be cross-referred to a fatwa. In this way, the fatwa features as a crucial aspect of the Islamic criminal justice system, not only as a foundation for prosecutions but also to inform the elements of crime.
It is questionable whether this is acceptable bearing in mind the creation of offences is a matter of substantive law and as such required to be generally within the discretion of Parliament or the State Assembly as the case may be.
In this context, like the Sulaiman Takrib challenge, at the heart of the Kahar challenge are two principal questions of constitutional law. The first is whether the Fatwa Committee of a state can be given powers, directly or indirectly, to create substantive law and in the exercise of that power define Islam and create offences. The second is whether the offences for which Kahar and the 2 others have been charged are “precept offences”.
It should be noted that some arguments have been raised against the analysis set out above. I think it only fair to set out these arguments so as to allow you to come to your own conclusions.
It has been suggested that the fatwas as in effect made into law by the Sultans of the States as the Sultans have to assent to the gazetting of the fatwas. I do not view this argument as being tenable as the Sultans do not make law.
It has also more recently been suggested that the State List has a provision (item 9) that allows for the creation of offences in respect of any matters in the State List. This argument contends that the power to create offences is not limited to “offences against precepts”. This argument will feature in Kahar and I will not comment on it for the time being.
Lastly, it has also been suggested that the phrase “Islamic Law” appearing in the item reproduced above envisages a field of competence (where Islamic criminal law is concerned) wider than precepts offences. This too will feature in the Kahar challenge and I will refrain from commenting.
Where To From Here
The Sulaiman Takrib and Kahar challenges are crucial cases. Decisions in both these cases will define our constitutional landscape and determine the extent to which Islamic law will impact on our public life. The ramifications are tremendous, and like the Lina Joy appeal, these cases are cross-road cases.
Seemingly recognizing the seriousness of the Kahar challenge, the Chief Justice empanelled a panel of five judges. That all five sat for the leave application makes it all that much more significant. In the Zaid challenges, one judge sat for the leave. In the Sulaiman Takrib case, three judges sat at the leave stage and at the main hearing.
It is imperative that this case is followed as closely as the Lina Joy case was. It is crucial that Malaysians understand the significance of the issues and the ramifications. If any of the counter arguments noted above are accepted, we would see the creation of a truly parallel Islamic criminal justice system. The implications of that remain to be understood.