Of Judges And The Constitution
My last comment ‘Of Religion And Choice’, not unexpectedly, drew some adverse comments on my blog.
One in particular emphasized the need for scrutiny in this very serious matter of Muslims leaving their faith, a process that, according to my critic, only the Islamic courts could properly undertake. It is intrinsic to this viewpoint is a belief that Islam prohibits apostasy.
The difficulty that the Muslim community in general has with apostasy is not a recent nor a localized phenomenon, the rejection of the freedom to leave Islam having been vehemently denied in other parts of the world. This is notwithstanding there being a dichotomy of views on the subject within the Islamic community, the other view being that the prohibition against compulsion in religion extends even to Muslims.
What has made the Malaysian experience unique is that while Muslim society did not support renunciation, until the Supreme Court fashioned a need to procure a declaration of apostasy from a syariah court in its 1999 decision in Soon Singh, there were no legal impediments standing in the way of an individual’s right to express his or her choice to do so. I say ‘express’ because to date, there has been no suggestion by the courts that Muslims do not have the freedom of religion. In Lina Joy, the majority concluded that the freedom of religion applied equally to Muslims but that such freedom was to be exercised through the syariah courts in accordance with Islamic law and that a declaration of apostasy was a pre-requisite to the practice of another faith.
It is significant that the decision in Lina Joy, like the prior decisions in Soon Singh and Kamariah Ali, were cases concerning the jurisdiction of the syariah courts. This was notwithstanding lawyers for or in support of the claimants having argued their cases as being mounted on the freedom of religion.
It appears that the judges concerned took this tact as this allowed them to avoid confronting the very real fact that the Federal Constitution guarantees in Article 11 a freedom of religion for every ‘person’ without qualification. The judges, Muslims themselves, seemed to have been conflicted; giving weight to the rights under Article 11 would pave the way to apostasy, something that they perhaps could not condone.
However, short of declaring the guarantee as not being applicable to Muslims, something they could not do, the judges concerned were bound. Diverting focus to the question of the separate and exclusive jurisdictions of the civil and syariah courts was a convenient compromise. This allowed for lip service to be paid the freedom of religion and, in their minds, caused no harm as they were not shutting the door on renunciation. That this would however create a conflict of interest for the qadhis of the syariah courts and result in a plethora of further complications did not appear to have struck the judges of the Federal Court.
This approach was similarly adopted in those cases where one of the spouses to a civil marriage converted to Islam and where the religious status of deceased persons was in issue, creating more difficulties rather than providing resolution causing SUHAKAM in recent years to call upon the judges to be more courageous.
Courage and personal morality have no place in the application of law. Judges take an oath to uphold the Federal Constitution. In doing so, unless it is unconstitutional, judges commit to upholding the law as it is written no matter how much they disagree with it on principle. If a judge is expected to sentence a man to death even if he disagrees with the death penalty, then a judge must give effect to the freedoms entrenched in the Constitution no matter how much he might find them unacceptable for personal reasons.
In the period before 1999, the courts of this country did not appear to have great difficulty with this concept. Apostasy, divorces by reason of conversion into Islam and other now-controversial matters came before the courts and were dealt with in a fair and just manner in accordance with the law.
What happened, we might ask.
I cannot say for sure. I do however believe that the judges who sat in these cases in the period after do not appear to have appreciated the legal nuances of the issues before them or the need for a strict adherence to the Constitution. In a 1988 decision of the Supreme Court (Che Omar Che Soh), Tun Salleh Abbas noted that as attractive as the argument that Islamic law was the governing legal paradigm of the nation may be, unless and until the Constitution was amended, that was not the case. Judges of the Federal Court in more recent years have not been so strict in their approach, having allowed for a re-writing of the Constitution that has resulted in confusion and injustice.
We cannot deny the impact of the sacking of the judges in 1988 just as we cannot deny the slow and steady erosion of the effectiveness of the Bench as the old guard gradually retired throughout the mid 1990s. And sadly, we can no longer deny the impact of the now confirmed brokering of judicial appointments and promotions.
Did we have as a general rule the best and most suited persons on the bench this last decade or so? It appears that we did not.
One in particular emphasized the need for scrutiny in this very serious matter of Muslims leaving their faith, a process that, according to my critic, only the Islamic courts could properly undertake. It is intrinsic to this viewpoint is a belief that Islam prohibits apostasy.
The difficulty that the Muslim community in general has with apostasy is not a recent nor a localized phenomenon, the rejection of the freedom to leave Islam having been vehemently denied in other parts of the world. This is notwithstanding there being a dichotomy of views on the subject within the Islamic community, the other view being that the prohibition against compulsion in religion extends even to Muslims.
What has made the Malaysian experience unique is that while Muslim society did not support renunciation, until the Supreme Court fashioned a need to procure a declaration of apostasy from a syariah court in its 1999 decision in Soon Singh, there were no legal impediments standing in the way of an individual’s right to express his or her choice to do so. I say ‘express’ because to date, there has been no suggestion by the courts that Muslims do not have the freedom of religion. In Lina Joy, the majority concluded that the freedom of religion applied equally to Muslims but that such freedom was to be exercised through the syariah courts in accordance with Islamic law and that a declaration of apostasy was a pre-requisite to the practice of another faith.
It is significant that the decision in Lina Joy, like the prior decisions in Soon Singh and Kamariah Ali, were cases concerning the jurisdiction of the syariah courts. This was notwithstanding lawyers for or in support of the claimants having argued their cases as being mounted on the freedom of religion.
It appears that the judges concerned took this tact as this allowed them to avoid confronting the very real fact that the Federal Constitution guarantees in Article 11 a freedom of religion for every ‘person’ without qualification. The judges, Muslims themselves, seemed to have been conflicted; giving weight to the rights under Article 11 would pave the way to apostasy, something that they perhaps could not condone.
However, short of declaring the guarantee as not being applicable to Muslims, something they could not do, the judges concerned were bound. Diverting focus to the question of the separate and exclusive jurisdictions of the civil and syariah courts was a convenient compromise. This allowed for lip service to be paid the freedom of religion and, in their minds, caused no harm as they were not shutting the door on renunciation. That this would however create a conflict of interest for the qadhis of the syariah courts and result in a plethora of further complications did not appear to have struck the judges of the Federal Court.
This approach was similarly adopted in those cases where one of the spouses to a civil marriage converted to Islam and where the religious status of deceased persons was in issue, creating more difficulties rather than providing resolution causing SUHAKAM in recent years to call upon the judges to be more courageous.
Courage and personal morality have no place in the application of law. Judges take an oath to uphold the Federal Constitution. In doing so, unless it is unconstitutional, judges commit to upholding the law as it is written no matter how much they disagree with it on principle. If a judge is expected to sentence a man to death even if he disagrees with the death penalty, then a judge must give effect to the freedoms entrenched in the Constitution no matter how much he might find them unacceptable for personal reasons.
In the period before 1999, the courts of this country did not appear to have great difficulty with this concept. Apostasy, divorces by reason of conversion into Islam and other now-controversial matters came before the courts and were dealt with in a fair and just manner in accordance with the law.
What happened, we might ask.
I cannot say for sure. I do however believe that the judges who sat in these cases in the period after do not appear to have appreciated the legal nuances of the issues before them or the need for a strict adherence to the Constitution. In a 1988 decision of the Supreme Court (Che Omar Che Soh), Tun Salleh Abbas noted that as attractive as the argument that Islamic law was the governing legal paradigm of the nation may be, unless and until the Constitution was amended, that was not the case. Judges of the Federal Court in more recent years have not been so strict in their approach, having allowed for a re-writing of the Constitution that has resulted in confusion and injustice.
We cannot deny the impact of the sacking of the judges in 1988 just as we cannot deny the slow and steady erosion of the effectiveness of the Bench as the old guard gradually retired throughout the mid 1990s. And sadly, we can no longer deny the impact of the now confirmed brokering of judicial appointments and promotions.
Did we have as a general rule the best and most suited persons on the bench this last decade or so? It appears that we did not.
MIS
Great article!
ReplyDeleteThe unfortunate and sorry state of the once prided Malaysian judiciary system can only be traced back to the works of one person, TDM, who with one stroke of a pen tainted the highly respected Malaysian judiciary system. Our forefathers fight for independence from our colonial masters was negated in the 1988 judiciary crisis which effectively brought back the master and slave system.
All these is no thanks to TDM!
Just out of curiosity. How can we, the people of this country impose a limited term for premiership? We don't want another TDM in the future? Maybe Malik you can advise on this.
Principles & Proper Procedures & Professionalism had gone!
ReplyDelete-------------------------------------
The sense of Right or Wrong is gone!
TDM is the starter.
But if all those allowing what had happened had the sense of Right or Wrong, or, Ethics, can ONE person manipulate?
The society is rotten!
So Right or Wrong is not guiding!
Especially in the place where Laws & Powers are being created - the Parliament!
Had the rules of the Parliament be strict to see Constitution be Fair and Rigid?
And, those being elected as MP has the professionalism and ethics to take the Rights of People be fairly constituted?
How many times Constitution had been amended and being more bias?
How many Acts been created and amended with more loopholes and bias?
If the system of Parliament (and so the requirement of amending Constitution) to provide a Fair Constitution & System is not there, the problems can never has a chance of rectifying!
If those working on the create and amend of Constitution and Laws do not have the Heart and Soul, it will remain at dead end!
ETHICS IS THE BASIS INGREDIENT TO BRING JUSTICE ALONG! Not only Judges, but, all those in the Judiciary!
Without the Right Spirit, Fair Constitution can never be exercised in the Court!
And most important, ALSO OUTSIDE the court - in our daily life!
Wake-up the Ethics of All!!
As a convert to Islam, I find it particularly distasteful for any legislative body to prosecute a person on the basis of that persons belief or lack thereof. No legislative authority has the power to enforce a belief, as a belief is a personal and intrinsic thing that nobody but the believer can authentically know or manipulate. Thus, any legislation passed as a means to enforce a particular belief is functionally impotent as anything more than a symbol.
ReplyDeleteA proper juris prudence would demand that laws created not be mere symbols, but be functional- otherwise the courts, as an apparatus of highest authority, lose their integrity, their credibility, and their ability to render justice. The creation of symbols should not be the job of a legislative or judicial body, but rather should instead be the job of the propagandists. When it comes to matters of belief, particularly in the realm of spiritual matters, a proper judicery is already in place, and does not need to be replicated by a more Earthy authority.
Thank you.