Defending the basic structure

It appears that PAS will be seeking to give effect to the Kelantan Syariah Criminal Code Enactment II of 1993 by way of a Private Members Bill in Parliament. Through this, PAS aims to introduce hudud laws into Kelantan for Muslims living I the state. The term ‘hudud’ (literally “limits”) refers to offences (and their corresponding punishment or sentence) that are considered by jurists to have been prescribed by the Quran and the Sunnah of the Prophet Muhammad. Punishments include death (by stoning), flogging and amputation.

It may be recalled that the 1993 Enactment, like its counterpart the Terengganu Syariah Criminal Enactment of 2003, which additionally introduced Qisas (retaliatory) offences and punishment, have been the subject of controversy since their inception. These laws, it was thought by many, were not only unconstitutional; they sought to codify impressions of Islamic criminal law that were not necessarily universally accepted.

Both the Kelantan and the Terengganu Enactments did not come into force, in part because of challenges to their constitutionality and public outcry. In 2003, Zaid Ibrahim was given leave by the Federal Court to challenge the validity of these enactments on the basis that the Legislative Assemblies of Kelantan and Terengganu did not have the competence to enact these laws. I appeared as counsel for Zaid Ibrahim. The Government of Malaysia, through the Attorney General, supported the applications. Though the petitions were ultimately withdrawn, the matter was thought to have ended there. The subject remained within the realm of politics and political brinksmanship.

Or so it was thought. The recent initiative to implement the Kelantan Enactment, albeit with the endorsement of Parliament, calls for a reappraisal of the matter, in particular its constitutionality and lawfulness.

No matter how many times the politicians say otherwise, Malaysia is not an Islamic state from a legal standpoint. The Federal Constitution declares itself the supreme law of the land. All actions by all organs of the State, including the Legislature and the Executive, at the Federal and State levels, must act consistently with that supreme law.  

Legislative power is divided between Parliament and the respective state legislative assemblies. The delineation of legislative powers is prescribed by the Federal Constitution itself, the 9th Schedule of which sets out in three separate lists – the Federal, State and Concurrent Lists – the fields of legislative competence of these lawmaking bodies. Criminal law as the term is commonly understood is within the domain of Parliament. The aim was to allow for the creation of a uniform system of criminal law applicable to all persons in Malaysia, a state of affairs required by the guarantees of equality before the law, equal protection of the law, and the equal protection of life and liberty. 

A minor exception was allowed for. Recognising the place of Islamic personal law in pre-merdeka Malaya (later Malaysia), State legislative assemblies were vested with the power to create Islamic law for personal law purposes. This included the power to establish Islamic courts, and create offences against Islamic precepts. In deference to federal control over matters of criminal law, the Federal Constitution required that sentencing powers for such offences be vested in the Islamic courts by Parliament. As thing stand, a federal statute – Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) – limits the sentencing powers of the shariah courts to imprisonment of three years, with any fine exceeding five thousand ringgit or with whipping exceeding six strokes, or with any combination thereof.

Although we are yet to see what it is that the Private Members Bill is aimed at, it stands to reason that it will seek to amend the 1965 Act in so far as Kelantan is concerned to allow for hudud offences and sentences, with particular reference to the 1993 Enactment. From media reports it would seem that some PAS Members of Parliament are of the view that a simple majority of members present in the Dewan Rakyat would be sufficient to push the bill, and as such hudud in Kelantan, through. I beg to differ.

For one, this viewpoint ignores the fact that the Kelantan legislative assembly was not competent to enact the 1993 Enactment. In creating the offences and prescribing the sentences that it does, it has encroached into the domain of Parliament for having created criminal offences. It has in effect created a parallel system of Islamic criminal law that goes beyond the constitutionally contemplated scheme of personal law offences. This not only violates the legislative provisions of the Federal Constitution, it offends the various guarantees of fundamental liberties accorded by the Federal Constitution to all citizens, including the Muslims of Kelantan. It would wholly undermine the constitutional arrangement of this nation and irreparably damage its basic structure. 

If this is what the Private Members bill seeks to achieve, then it is clearly misconceived. Leave aside concerns about the basic structure, such an effort would be tantamount to an attempt to amend the Federal Constitution. In the ordinary course, this would require a majority comprising two-thirds of all members of both Houses of Parliament. 

As I understand it, private members bills are not treated as matters of priority. I cannot recall when we last heard of one being debated in Parliament, they are pushed to the end of the list and called up only on the completion of government business. Chances are that the proposed bill would never see the light of day.

The political climate is however murky, and extremism appears to be lurking on the fringes. A declining economy, continuous emphasis on race and religion and an ineffective education system have collectively served as an incubator for a reactionary mindset amongst a large number of Malaysians.  I am concerned that desperate ambition may make an alliance with PAS on this subject seem acceptable to UMNO. 

If so, and I hope it not to be the case, then it cannot be emphasised enough that the context make this a matter of great seriousness. The implications are tremendous. 

This is not about Islam, or being anti-Islam. I do not think it open to anyone to suggest that the legal framework of this country has done anything other than to serve and promote the interests of the religion. Muslims in this country have every resource at their disposal to profess and practice their faith. 

Rather, this is about standing by a shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation.

Malik Imtiaz Sarwar is a practising lawyer and the Immediate Past President of the National Human Rights Society of Malaysia (HAKAM). This comment is dedicated to the memory of the late Karpal Singh who fearlessly and untiringly defended the basic structure of this nation

Translating Policy Into Practice

Translating Policy Into Practice

The media reports that the cabinet has decided that children of marriages where one spouse subsequently embraces Islam would remain in the faith that the parents had agreed on at the time of marriage. The cabinet has also appeared to decide that the civil courts are to dissolve such marriages.

These decisions are welcome ones. They indicate willingness on the part of the administration to deal with issues that have for some time now been studiously avoided, a state of affairs that had prompted the establishment of the coalition of NGOs calling itself “Article 11” and its “Equal Protection For All” campaign in 2006.

The decisions also indicate the policy position of the current administration, one that on its face appears to adhere to the constitutional guarantees of equality and the right of parents to choose the religion of their children. The Constitution guarantees the right of a parent to decide the religious instruction of a minor child. The Constitution provides that words in the singular are to be understood to include the plural, parent being “parents”. By virtue of this and the guarantee against discrimination on grounds of gender, it is clear that the intention was to vest guardianship rights in both parents. This is reinforced by federal law.

I am however uncertain as to how this policy position is to translate into practice as the cabinet has little or no direct power in this regard. Religion is a matter for the state and not the federal government; each state has exclusive authority over the administration of Islam within the boundaries of that state. This would include matters of conversion of children and the jurisdiction of the syariah courts, both of which are matters in respect of which the state legislative assembly has the competence to enact laws on.

Though the constitution itself lends support to the policy position of the cabinet, and as such could be invoked to reign in those state agencies involved in these matters, the question of whether there has been a transgressing of limits is one for the courts. The courts have however in recent years handed down decision after decision that have undermined the constitutional framework and entrenched as principle the very matters that the cabinet now wishes to address.

In 2004, the High Court in Shamala Sathiyaseelan ruled that the converting husband had a right to convert the children into Islam without the consent of the wife. The court also ruled that it had no jurisdiction to entertain the wife’s application to challenge the legitimacy of the conversion. Accepting that the wife was without recourse for not being able to move the syariah court as a non-muslim, the court counseled her to seek the assistance of the Majlis Agama. This is a scenario that the majority decision of the Federal Court in Lina Joy reinforced in 2007

In the same vein, a majority bench of the Federal Court in Subashini Rajasingam concluded in 2008 that either parent could convert a child of the marriage into Islam. It ignored the non-discrimination guarantee as well as the interpretation provision for words in the singular and focused on the word “parent”, interpreting it to mean “parent” in the singular. The majority also decided that the muslim party was free to commence proceedings in the syariah court even though the non-muslim party was entitled to seek dissolution and maintenance and custody orders in the High Court.

These decisions and others like them stand in the way of the cabinet implementing its policy position. It is ironic that the decisions noted above were largely the result of ill conceived and shortsighted positions taken by the Attorney General’s Chambers on these matters, positions that sought to denude the High Court of jurisdiction to allow for the preservation of an unjust status quo.

To move forward, the cabinet must therefore take the bull by the horns.

I assume that the cabinet made its decisions based on advice from the Attorney General. It is therefore imperative that the Attorney General articulates his revised position on these issues in the courts as soon as possible. The Shamala case comes before the Court of Appeal on Monday and he should apply to intervene to make the necessary points. Being matters of great constitutional significance that are clearly in the public interest, they warrant his involvement.

(Malay Mail; 24th April 2009)

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The Freedom To Be

(I start a monthly column with The Malaysian Insider today. My column will appear on the first monday of each month. This is the first (I have made some minor changes since submitting it))

The Freedom To Be

In his seminal work, “Islam And The Secular State: Negotiating The Future Of Shari’a” (Harvard; 2008), the noted scholar Abdullahi Ahmed An-Naim observes that it is not possible for people of any society to keep their religious belief, commitments and concerns out of their political decisions and choices. He notes that the categories of understanding that people employ in their everyday life cannot neatly be parsed into the non-religious and the religious, an approach which has led to tensions and a spiral of mutual violence and destruction.

An-Naim as such propounds that it is both practical and healthy to recognise the role of religion and then regulate it as a source of guidance for political decision. This must however take place in the context of a secular state. An-Naim defines this as a state in which institutional separation between Islam and the state is maintained and the influence of religion in the public domain is open to negotiation, such negotiation being contingent upon the free exercise of the human agency of all citizens, Muslims and non-Muslims alike. Religion needs secularism, he argues, to mediate between different communities (religious and non-religious) as well as securing the legal and political space for religions to develop as they should. In this context, he observes that the safeguards of secularism, constitutionalism, human rights and citizenship are vital to set limits on the power of the majority and impede oppression.

The points An-Naim makes are of great relevance to us.

It is beyond question that Islam is closely linked to politics in this country with Malay-centric political parties PAS and UMNO making use of the religion for political advantage to their respective ends. For PAS, this has been portrayed as an advancing of its own ideological positions, centered on Islam as they are. UMNO on the other hand invokes Islam in aid of its Ketuanan Melayu ideology. In this, Islam has become political currency and a strategic weapon in the campaign against each other to the detriment of other political and civil society actors who have in any event been largely silenced by the stranglehold maintained by PAS and UMNO on Islam and Malay rights. The spectre of race riots and heavy-handed policing of anti-expression laws have stifled necessary and practical discussion of the very serious issues that arise and which affect all Malaysians.

The upshot is that both parties have ultimately positioned Malaysia as an Islamic state in one form or the other. UMNO continues to push boundaries on the application of Islamic law in an effort to showcase its Islamist credentials. Less circumspect and notwithstanding its membership of the Pakatan Rakyat, PAS insists in the face of constitutional limitations that the syariah must be the supreme law of the land, characterizing its demands for the same as being nothing more than allowing Muslims to fulfill their religious obligations. This has unfortunately given rise to tensions in various quarters.

The controversy over the implementation of hudud laws illustrates the foregoing. Under the Constitution as it is currently framed, it would not be possible for hudud and qisas law to be implemented at either the State or the Federal level. As it stands, the Constitution divides legislative power between the State Legislative Assemblies and Parliament. The power to enact criminal law is vested in Parliament with the State Legislative Assembly having only the limited power to enact offences against the precepts of Islam where such offences do not concern any of the matters within Parliament’s power to enact criminal law. These offences are only as against Muslims. Furthermore, the syariah court is limited to imposing a maximum sentence of three year jail or a fine of RM5,000 or six strokes of the whip or any combination thereof. It is obvious therefore that the State has no power to make hudud and qisas laws, which amongst others are punishable by amputation and stoning. This was the basis of Zaid Ibrahim’s legal challenge against Kelantan and Trengganu in 2003.

The constitutional scheme is not beyond PAS’ comprehension judging by its shift in rhetoric. The suggestion that hudud and qisas would now be introduced if the Pakatan Rakyat forms the Federal Government strongly suggests that PAS appreciates that criminal law is a matter for Parliament. It would nonetheless be impossible for PAS to replace the current criminal law system with a syariah based system without a constitutional amendment and an overhauling of the entire system of justice. The constitution as it stands allows for the enacting of criminal law that does not fall within the ambit of offences against the precepts of Islam or, put another way, neutral or secular criminal law. This is consistent with the guarantees of religious equality and harmony as well as individual autonomy under the Constitution that impede the imposition of religious based law on person of other or no faiths.

That PAS continues with its posturing nonetheless reflects the continued political value of the religious card, as does UMNO’s failure to reject the possibilities outright. In doing so, both have adopted a majoritarianism that in projecting Malaysia as a hybrid-Islamic state oppresses both Muslim and non-Muslim alike.

For non-Muslims, the public space for expression and discussion has been limited through discriminatory policies that are justified by reference to their aim of protecting Islam. The recent directive to cease publication of the Herald in the Malay language illustrates this as do a range of other policies or directives. The question must be asked whether Islam or even the Malays are in need of protection and, if so, from what. Islam is already protected under the Constitution and the legal framework, and ample provision has been made for Muslims to practice their faith.

For Muslims, the freedom and diversity provided for by the syariah have been obscured in the shadow of the monolithic Islam that authorities have been permitted to erect. Through laws and fatwas and denunciations, it has become such that only one type of Islam may be permitted, that type which the State defines and applies. This does not concern only the so-called deviationist types of Islam, the Ahmadiyah movement in Selangor being the latest target for a display of religious zeal on the part of the state; it equally pertains to the freedom to be a thinking and conscious Muslim. The banning of books and the recent yoga controversy epitomizes the status the Islamic administration has in this country and the detrimental impact this has had on the life of a Muslim. As An-Naim candidly observes, “As a Muslim. I need a secular state in order to live in accordance with the Shari’a out of my own genuine conviction and free choice, personally and in community with other Muslims, which is the only valid and legitimate way of being a Muslim.”

These trends are worrying, more so for their exploiting a tremendously weakened system that does not safeguard society as it is intended to. We must find the space that will allow each of us to be who we are in the way An-Naim suggests.

To do that, I believe that we do not have to look any further than the Constitution. The key elements of An-Naim’s model are provided for in this manner: it limits the administration of Islam to matters of personal law and in doing so mandates the neutrality of the public law system. It nonetheless allows for Islam to be developed fully through a separate system of personal law administration. The Constitution also guarantees the freedom of expression and association that allows entities such as PAS and ABIM to exert influence to the extent that they can, their views being counterbalanced by different views. These and other guarantees guarantee the free exercise of human agency.

If this system were permitted to achieve equilibrium as it once did, it would be possible to see a flourishing of Islam and the development of a truly just, compassionate and fair society for all. That is something one does not need the label of an Islamic state to attain.

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Diversity

This is a photograph of the Sultan Ismail Petra Silver Jubilee Mosque in Rantau Panjang, Kelantan. It is still being completed but you can see why it is being referred to as the 'Pagoda Mosque'. Maverick has a blog post on the mosque (I lifted the photo from it). The NST has a story on it too, the mosque seems to have found favour with tourists.

A picture is worth a thousand words, they say. This one says that Islam does not belong to any one community, it has room for all.

My fervent hope is that our acceptance of diversity goes beyond architecture and tourist attractions.

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Islam Hadhari And The Pakatan Rakyat

The 'ban' on the promotion of Islam Hadhari in Selangor and Penang is something of concern. I say this not in defence of Islam Hadhari, which I believe that as well-intentioned as it may have been at conception had evolved into a convenient justification for a range of wrongs, but rather from the perspective of governance, civil rights and politics.

The 'ban', if it can be called that for its legal basis remains unclear, is heavily nuanced. In as much as it calls for a consideration of Islam Hadhari and the Barisan Nasional, it equally raises very crucial questions about the Pakatan Rakyat. Farish Noor, who is equally concerned, has already written on it, asking some of the questions I have in my mind. I have republished his article (originally published on The Other Malaysia) with permission as the first posting in a series on this subject. I have also discussed the issue with Haris Ibrahim who has similar reservations and intends to address the matter on The People's Parliament as well.

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Islam Hadari and the Politics of Banning

There are ideas, and there can be stupid ideas; but to ban an idea simply because of its stupidity seems to be a rather stupid thing to do in itself.

Among the ideas that circulate in the congested bowels of Malaysia’s public domain is the somewhat nebulous idea of ‘Islam Hadari’; loosely translated at times as ‘civilisational Islam’ or ‘societal Islam’. Others of a less charitable bent have dubbed it ‘theme park Islam’, ‘Crystal mosque Islam’ and even ‘Badawi’s brand of Islam’. Branding aside, it would appear that this brand of Islam has come under close scrutiny and admonition of late. In May the Pakatan-led state government of Selangor announced that henceforth the state would no longer promote Islam Hadari and this was later followed up by a similar move on the part of the Pakatan-led state government of Penang.

The rationale behind this prohibition leaves us with some unanswered questions that might as well be raised at this point. Who called for the prohibition of Islam Hadari and on what grounds? And if Islam Hadari is to be banned by the Pakatan-led state governments, what does this entail for the Muslims and non-Muslims of Malaysia? What, in the final analysis, was the objective of this ban?

Now this academic would hardly call himself a fan of Islam Hadari, as anyone who has read these columns would realise. Time and again we have pointed out the shortcomings, contradictions, double-standards and downright hypocrisy between the ideals of Islam Hadari and what has been put into practice. Islam Hadari – as a broad statement of inter-related intentions crafted in the form of a statist religio-political discourse – promised us the opening of the Muslim mind, the creation of a more open civil space, the protection of pluralism and difference and the promotion of gender equality.

Yet what we have seen thus far falls short (and very short, mind you) of the abovementioned objectives. In Trengganu I walked into the Islam Hadari theme park that seemed more like a vulgar imitation of Disneyland than a concrete affirmation of rationalism and the spirit of enquiry. The famous ‘crystal mosque’ that accounted for the whopping price tag of the whole theme park failed to impress and was certainly a pale mimic of what Islamic aesthetics could achieve. And one wonders how such grand and money-devouring projects would serve the ends of opening up the Muslim mind when all we see are posters and banners celebrating the ego and image of the man said to be the mastermind of the grand logic of Islam Hadari itself, the Prime Minister.

Criticisms like these, however, serve to keep the powers-that-be in check and to remind them of their public commitments to ideas and values that they fail to practice in office. How, pray tell, can you open up the minds of Malaysians when the very same government that preaches Islam Hadari remains as a passive witness to the spate of book-banning and the narrowing of discursive space in the country?

This, however, should not be taken as the license to simply ban Islam Hadari – or any other ideas or interpretations of Islam – outright. For if we were to say that Islam Hadari is wrong in toto simply because the people who thought it up don’t even understand it themselves, then would we not also be rejecting some of the better ideas and values that have been inculcated into the general framework of the project itself? Islam Hadari, on paper at least, calls for the respect of difference and pluralism and the promotion of gender equality between men and women. Are these ideas to be rejected too, simply because they have been brought within the ambit of Islam Hadari? For my part, I am quite happy to see any party or politician, be they of the ruling parties or those in opposition, endorsing pluralism, democracy and gender equality at any time of the day…

Which leads us to the actors and agents behind the prohibition of Islam Hadari in Selangor and Penang. Now according to reports, the calls for the ban on Islam Hadari have come from those who claim to be representatives of the Muslim community and this includes members of political parties, Muslim lobby groups, Muslim NGOs and former Muftis. The justification for the ban, we are told, is that some of these individuals feel that “the teachings of Islam are perfect as they are” and that “there is no need for supplements”. Their calls for the prohibition of Islam Hadari, it would seem, is fuelled by the desire to “return to the true teachings of Islam”. But this immediately leads us to the obvious question: Is defending gender equality, promoting openness and recognising pluralism and difference (both among Muslims and between Muslims and others) not essentially Islamic anyway? How, pray tell, does promoting gender equality amount to ‘supplementing’ or ‘deviating’ from the teachings of Islam?

Despite assurances that this move to prohibit the promotion of Islam Hadari is not political, we find it ludicrous to suggest that the move is void of any political motivation. Islam Hadari itself began as a political project – to politically engineer the opening of Muslim discursive space, though this did not happen – and the reactions to it have been political as well.

Those who claim that any modern revisionist attempt to re-think Islam is deviant or dangerous, and that Islam is perfect as it is, are obviously missing the point: We all know that Islam in its essential, fundamental, literalist form conjoins and promotes equality, freedom and justice. But a cursory overview of the normative religio-cultural and social praxis of Islam in the daily lives of Muslims the world over today will show that the Muslim world is riddled with the problems of sexism, racism, feudalism, communitarianism and sectarianism. The appeal to ‘return to the Quran’ or the fundamentals of the Muslim faith ring hollow when we look around us and see how the politicisation of Islam has served only the agendas of elites who manipulate the sentiments of the majority, who have organised and led pogroms against racial and religious minorities, who have been the first to accuse other Muslims of being ‘kafirs’, ‘munafikin’ and apostates. Why, all this talk of Islam being singular and perfect makes me glance to our neighbours next door in Indonesia where at this very moment the Ahmadiya minority are being labelled as deviants, apostates, enemies of Islam, etc. while the self-proclaimed ‘true Muslims’ are calling for them to be banned, their mosques burned to the ground and their members harassed, attacked and murdered.

So let us not kid ourselves with the worn-out cliché that Islam has not changed over the past fourteen centuries, or that Islam does not require a modernist interpretation that meets the needs and reflects the realities of the modern age. For Islam to remain a meaningful and dynamic belief and value system today, it has to undergo a process of serious, thoughtful, objective and critical interpretation that allows it to reflect the complexity of Muslim social life in the present. This means evolving a contemporary theology and orthodoxy that reflects the strides that have been made in promoting gender and racial equality, the advancement in Muslim thought, the openness of Muslim society today. We don’t need some conservatives telling us to go back to the Golden Age of Islam 1,400 years ago, because frankly I would rather live in Malaysia in the present, thank you.

And if Islam Hadari is to be criticised – and it deserves to be criticised constantly, too – it should be for the reason that those who have tried to promote it have failed to meet the standards they have set for themselves. Cakap tak serupa bikin, as they say. I don’t need some tawdry crystal mosque to impress me about Islam, Prime Minister. Lets see you lift the ban on the Ahmadis and recognise other Muslim groups like the Shias, and maybe my opinion of you might be revised somewhat.

The Pakatan-led state governments, on the other hand, would do well to focus on real issues such as governing this country well; as the previous lot obviously had no idea how to do that. The banning of books, ideas, belief and value-systems and alternative cults and sects should be relegated to the past and the dark ages of the Barisan Nasional government. The March 2008 elections was a vote for a new Malaysia, one where pluralism and diversity would be defended. Lets not let this vote be misunderstood as an endorsement for an Islamic state shaped according to the mould of UMNO, PAS or any sectarian Muslim party or organisation. Banning should be a thing of the past, like the BN; and if Islam Hadari is to be dumped into the dustbin of history, it should be relegated there on account of its contradictions and mis-application by incompetent politicians, and not because some Mullah wanted it so.

Dr. Farish A Noor is a senior fellow at the S. Rajaratnam School of International Studies, NTU, Singapore and affiliated professor at Universitas Muhamadiyah Surakarta, Indonesia. He is also one of the founders of the www.othermalaysia.org research site.

A Further Note On Jurisdiction And Syariah Courts

The Federal Court handed down a decision yesterday on the question of the jurisdiction of the syariah courts in the case of Abdul Kahar Ahmad v Government of Selangor & Others. The Federal Court confirmed that it is the Federal Court that has jurisdiction over matters pertaining to the interpretation of the Federal Constitution and the competence of the legislatives bodies to make law, even where such law pertains to Islam. In so concluding, it reiterated its decision in Latifah Mat Zin that the jurisdiction of the syariah courts is as delineated by the Federal Constitution and as vested by enacted law.

I have written about the case before on this blog. Kahar has commenced proceedings in the Federal Court to challenge the validity of certain provisions of Selangor law going to the binding nature of gazetted fatwas (without having passed through the State Legislative Assembly) and the criminalization of certain acts for being offences against the 'precepts of Islam' (this is a constitutional requirement; Kahar amongst other things contends that it is not an offence against the precepts of Islam to act contrary to fatwa as a fatwa is mere opinion).

The Majlis Agama Islam Selangor (MAIS) had applied for leave to intervene as an interested party. The Federal Court allowed the application (Tun Fairuz was then the Chief Justice and chaired the panel that granted leave; we opposed the application as the underlying proceedings concerned only the question of legislative competence). MAIS then applied for a stay of proceedings in the Federal Court on the ground that only the syariah court was competent to decide whether the offences concerned were against the precepts of Islam. This was notwithstanding the fact that the the Federal Constitution itself employs the phrase in delimiting the competence of the State Legislative Assembly to make laws pertaining to Islam.

We opposed the application on the basis that the Federal Constitution clearly empowers the Federal Court to determine proceedings of this nature. We further argued that there was no question of any of the parties, save Kahar himself, being within the jurisdiction of the syariah court as MAIS, the Government of Selangor and the Federal Government were not 'persons professing the religion of Islam'. The Federal Court however did not think it necessary to rule on the latter point.

The Star reports the decision today ('Federal Court to hear application by 'prophet'). It is reproduced below.

____________________________________________________________________

PUTRAJAYA: The Federal Court is the right court to hear a 57-year-old self-proclaimed prophet’s application to challenge certain provisions in Selangor’s Syariah Criminal Offences Enactment.

The apex court decided this yesterday when it dismissed an application by the Selangor Islamic Religious Council (Mais) for an order that the issue be decided by the Syariah High Court.

As such, the suit by Abdul Kahar Ahmad to challenge the legality of the five sections of the enactment he is charged under will continue at the Federal Court.

Chief Justice Datuk Abdul Hamid Mohamad, in his judgment, said there was nothing in the Constitution to say (the Constitution’s) interpretation was within the jurisdiction of the Syariah court.

The Syariah court’s jurisdiction, he added, was confined to the matters enumerated in the state list of the Constitution and as enacted by the respective states.

Court of Appeal President Justice Zaki Tun Azmi and Justice Zulkefli Ahmad Makinudin, who sat on the three-man bench with the Chief Justice, concurred with his decision.

Abdul Kahar was charged in the Shah Alam Syariah High Court in August 2005 with five offences under the Selangor Syariah Criminal Offences Enactment.

He pleaded not guilty to all the charges.

Among other things, he is accused of declaring himself a prophet and for ridiculing the practices of Islam.

The next hearing date is fixed for May 28.

Abdul Kahar is seeking to declare certain sections of the Selangor Syariah Criminal Offences Enactment and the Islamic Religious Administration (Selangor) Enactment null and void.

The Star, 23th May 2008

Of Judges And The Constitution

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.

MIS

Of Religion And Choice

Of Religion And Choice

It may be wise to pause for breath before rushing out to celebrate the decision of the Penang syariah court in the Siti Fatimah case. Though welcome, not least for the fact that it allows Siti Fatimah to carry on with her life, we must ask ourselves whether it really sets the required precedent that the issue of apostasy requires.

I do not think it does.

The first difficulty I have with the decision is its basis in law. The syariah court has jurisdiction only over persons professing the religion of Islam. Siti Fatimah claimed, and still claims, that she was not such a person and that she converted only for the purpose of marriage. Let us say for purposes of argument that at the time of her conversion, and in the period she wished to remain married, she was for all purposes a Muslim. It is apparent that at some point prior to her petitioning the syariah court, she ceased being one and was, as such, no longer a person professing the religion of Islam.

How then did the court assume jurisdiction?

This brings me to the second difficulty. There are two distinct polar views concerning the issue of renunciation. At one end, there is what I call the pro-choice view that allows every person, without qualification, a freedom to determine of their own right their choice of religion. The Federal Constitution guarantees this choice in Article 11 which vests the freedom in ‘every person’. At the other extreme, there is the view that the choice of leaving Islam is one that can only be exercised through, and as such by, the syariah court. I call this the pro-regulation view.

It is apparent that the pro-regulation view renders illusory the right to choice of religion. For persons who happen in law (as opposed to ‘in fact’) to be a Muslim, the decision of which religion to profess is no longer theirs. If they wished to leave Islam they would have to go on bended knee to the syariah court, uncertain that the syariah court would ultimately agree with their petition. In the legal fiction perpetuated by those who espouse the pro-regulation view, a group that includes those judges of the Federal Court who formed the majority in Lina Joy, a person is a Muslim until such time as that person is declared a non-Muslim. It does not matter that the person may not in fact profess Islam any longer. Though an incredible perspective, it has nonetheless informed constitutional jurisprudence as of late and entrenched a mind-set that has resulted in grave injustice to persons unfortunate enough to have had to confront the issue.

It is on this precarious premise that the syariah court of Penang assumed jurisdiction over a person it ultimately declared as being not a Muslim. Our celebrating of the decision would as such be a celebration of a wrongful seizing of jurisdiction and wielding of power by a court not empowered to do so in law. It would also be, where Muslims are concerned, a commending of the vesting of the right to choose in a third party agency, leaving in tatters the fundamental liberty so painstakingly provided for in the Constitution.

Regardless of the convenience of the Siti Fatimah decision, it cannot be a good thing. Media reports suggest that the Penang syariah court was swayed by Siti Fatimah not having been given proper advice about Islam by her former husband and the Islamic authorities. This means that the court could take a different view of those who were born into the faith, such as Lina Joy, or those who made a decision to embrace Islam after due consideration. The court would after all be at liberty to do so if it were vested with a discretion.

I am concerned that the decision may distract from meaningful and coherent efforts aimed at ensuring a just and constitutional solution to the issue of apostasy. We should not lose sight of the fact that before a grossly misconceived decision of the Supreme Court handed down in 1999 (Soon Singh), Muslims were not required to obtain an exit-order from the syariah courts. They left the faith, declaring the fact by deed poll and carried on with their lives in relative privacy. The public face of Islam was left unscarred and the religion was not made a victim in a way that it has been of late.

(Malay Mail; 13th May 2008)

MIS

Pakatan Rakyat: A Need For Discipline

It is becoming more evident that one of the main challenges for the Pakatan Rakyat – apart from the steep learning curve vis a vis governing the states it captured – is to maintain discipline not just within the individual coalition members but throughout the coalition.

Looking back, one of the factors that led to voters rejecting the Barisan was the perceived double-speak or even hypocrisy of the leadership. To a large extent, this perception was fueled by the way in which senior cabinet and party members, Nazri and Zainuddin in particular, kept making statements that were not only counter to logic and reason but also to any reasonable scheme of due governance. These statements, made as they were by such senior officials, became statements of the Prime Minister in the minds of many.

This is not unreasonable. Much in the same way, the very positive positions being taken by Zaid at the moments are making some consider the possibility that we may actually be seeing the start of reform. It is common sense; conduct of delegates reflect on leadership.

It is apparent therefore that leadership of both the Barisan and the Pakatan must ensure that positions being taken publicly on matters of governance must be consistent with the declared policy of the administration. Inconsistency can in no way lend to confidence, creating as it does ambiguity and uncertainty in its wake.

I note that the leadership of Pakatan Rakyat has issued a statement that leaders and members of the Pakatan are to stop expressing views contradicting those that have been mutually agreed upon (‘Pakatan not forum for personal views’, NST, 13.04.2008). The statement is reported to have declared, amongst other things, that “Although there have been individuals who expressed views different from the agreed agenda of Pakatan Rakyat, those views are clearly personal. They do not represent that of any of the parties in Pakatan Rakyat”.

The fact that the leadership of the Pakatan Rakyat has had to issue a statement to my mind points conclusively to there being a problem with persons of influence in the coalition feeling either the need or it being thier right to make statements which reflect on the coalition as well as the political parties to which they belong. This is problematic, especially during these early post-Election and Pakatan Rakyat times. Statements made without due consideration to the common agenda of the Pakatan Rakyat or the way in which these statements will be misunderstood will give opportunity to detractors to undermine confidence.

This is particularly so in matters pertaining to the administration of Islamic affairs. Statements made at any level suggestive of a desire to entrench or widen Islamic rule in the public sphere are destructive not only of the currently fragile commitment of the voter base to political change, their having in their minds taken a huge risk in shifting their support, but also the delicate but crucial balance between the coalition members of the Pakatan Rakyat. Religion is a personal matter and the last fifteen years of Islamization trends have left this country deeply divided and raw.

I appreciate that there will always be a need for the leadership of a political party to appeal to their own membership either to shore up confidence or to increase influence. This is a fact of political life. And were Malaysia to be where it was prior to March 8th, there would be no concern.

However, things have changed. We have the beginnings of a new trend in democracy. Much hinges on the success of the Pakatan Rakyat and care must be taken to not make a difficult situation even more so. The moderation of expressions of opinion is therefore vital. UMNO learnt the hard way that the publicizing of sensationalist rhetoric intended for internal consumption could and would boomerang. The same will happen to the Pakatan Rakyat.

We have recently read of the exchanges by PAS, through Tok Guru Nik Aziz, and DAP, through Karpal Singh. These have resulted in the media characterizing Karpal Singh as being anti-Islam in the eyes of Nik Aziz. In an article published in The Star on 07.04.2008 (MB: Karpal belittling PAS), the PAS spiritual leader is quoted as saying “I want to know what is wrong with Islam and where does he disagree with Islam.”

Even if the reporting has not been fair, and there is nothing to suggest that this has been the case, the fact remains that statements like these will be used to feed a perception and create mistrust. As I understand it, Karpal Singh is merely attempting to establish that the constitutional framework of this nation is a secular one. Nik Aziz may be attempting to argue that there is nothing objectionable about the value base of the nation being an Islamic one, and he may be right. The exchange is one that need not have taken place in the public arena.

In the same vein, a recent article appearing in Harakah (Selangor pergiat dakwah, wujud surau di pasar malan, tani), in effect, represents Dato’ Dr Hasan Ali, exco member of the Selangor State government responsible for amongst other things religious affairs and Malay adat, as having developed a close working relationship with the Jabatan Agama Islam Selangor (JAIS) aimed at allowing for greater efforts in aid of promoting and propagating the Islamic faith in the state of Selangor. This will, according to the article, include the establishment of ‘moral policing’ enforcement frameworks.

Again, even if the article was intended for internal purpose and is a statement of aspiration, the messaging has had a wider impact and will continue to do so. They will create an impression that PAS has ambushed those who took a chance on it, even it’s co-coalition members, where this is not the case.

It is evident that this state of affairs must be addressed. While it is apparent that there is a need on the part of the coalition members to build greater understanding of their respective priorities and value bases, and that more attention needs to be paid to improve public relations, there is also a need to obtain and ensure the commitment of the individual party members to the common agenda of the coalition. This can only be achieved if these members understand the important of discipline on their part, not only for the purposes of their own political parties but to the coalition as a whole. In the minds of those who observe, personal views may be seen as being views of the coalition. Further, where those views are inconsistent with the coalition agenda, it will be perceived as being a breaking of ranks.

That cannot be good, not just for the Pakatan Rakyat, but this nation.

MIS

A Test For The 'Reform Cabinet'

Concerns have been expressed about proposals made at the conclusion of a seminar organized by the Islamic Institute of Understanding Malaysia (IKIM) and the Syariah Judiciary Department recently. As reported by the media (‘Proposal to prosecute non-Muslims for khalwat’, The Star, 3rd April 2008), these proposals include the prosecution of non-muslim parties to the offence of khalwat, though in the civil courts, increasing the penalties to include whipping for the syariah offences of khalwat, prostitution, consuming alcohol and involvement in gambling activities and the establishment of rehabilitation centres for those convicted of moral and faith offences. Though reference is also made in the media to a proposal concerning apostasy, no details have been given. Judging by the other proposals, it would not be improbable that it proposes the criminalization of apostasy.

In a nutshell, these proposals, formulated as a draft resolution, which is to be submitted to the Attorney General’s Chambers, aim at increasing the role of Islamic law in the public life of Malaysians. As I have said before, in my view, the extent to which Islamic law has been made to be applicable in the public law sphere in Malaysia is not supported by the Federal Constitution. The Constitutional framework envisaged Islamic law being relevant only to the personal law of persons professing the religion of Islam to the extent that the same did not conflict with the fundamental liberties of these individuals. We have however seen how constitutional safeguards have been eroded through judicial pronouncements, a situation which has culminated in a deeply entrenched mindset that the Islamic legal system is legitimately a system of parallel standing to the secular civil law system.

The draft resolution of the seminar reflects this mindset. It is eerily consistent with the statement issued by a coalition of Islamic NGOs shortly before the General Election, one which, in effect, called for the implementation of Islamic State measures.

I do not agree with the correctness of these views. As I have said elsewhere, the Federal Constitution does not envisage the establishment of an Islamic State nor does it allow for the implementation of measures aimed at the articulation of Islamic law in public life. For this to be permitted, the Federal Constitution must be amended. Until this is done, no matter how well intentioned proposals to this effect are, they must remain as just that, proposals.

It is wholly repugnant to any notion of a united, harmonious Malaysia for non-Muslims to be convicted, directly or indirectly, of offences that might rather ambiguously be called Islamic moral or faith offences. In my view, it is equally repugnant to subject Muslims to moral policing. I believe that there is constitutional basis for rejecting the validity of such offences though this remains, as yet, unarticulated in the courts.

The proposals are basis for grave concern for two reasons. Firstly, apart from the questionable legality of the proposals, they are deeply worrying for the fact of whose views they are. In this I do not intend to refer to individuals but rather the agencies involved. IKIM is the government linked agency that is charged with the articulation of Islam Hadhari. The Syariah Judiciary department is the department charged with overseeing the administration of Islamic law through the syariah courts. The resolution that is being submitted could therefore be said to be a resolution of agencies of the Government and are, to that end, potentially of great influence. This state of affairs is not easily reconciled with the declared vision of the Barisan Nasional Federal Government of a progressive and moderate nation. Not only do the proposals smack of ‘talibanism’, they have quite predictably failed to address the more fundamental problems affecting the ummah in Malaysia in their not unusual preference of form over substance.

Secondly, the proposals suggest an intent on the part of the agencies concerned to persist in attempts to perpetuate divisive delineations of race and religion as well as the underlying supremacist positioning. Coming so soon after the devastating results of the General Election, I cannot help but ask whether the proposals are in a way an attempt to up the ante, so to speak, in what is already a very confused state of affairs. Whatever the case, civil society and the political parties must be vigilant in ensuring that responses are measured and tactful. Were they the views of individuals who were in the extremist minority, aggressive responses might not have any serious consequences. These views are however being presented as the views of IKIM and the Syariah Judiciary Department. Responses carry with them the possibility of serious reprisal or repercussions.

As to how this reflects on the Barisan Nasional Federal Government, much will depend on how the Government responds. Civil society is entitled to expect a response. Religious supremacism was one of the key issues in the last General Election and the Adbdullah Badawi administration has promised reforms across the board. This could be one of the first tests of the sincerity of the administration. A failure to respond from a moderate, progressive and constitutional perspective will further convince Malaysians that the Government only pays lip service to notions of unity and harmony.

MIS

Forgive Me

Forgive me, God
I looked into the Quran today,
I really looked.

Found nothing to support racism, corruption
Or the breaching of sacred trust
I read verses, I read between them
And no matter how much I tried,
I could not find anything about it being alright
to lie, cheat, steal and
to hurt, really hurt, people.
Injustice, it seems,
is not mandatory
is not permissible

I looked in the Quran today,
I really looked
And I did not find Malaysia

But then, who am I
To dare read and presume understanding,
Who am I to have the audacity to believe.
Who am I to think, to appreciate
what God expects of me,
all by my sorry self
when I was obviously given only
half a mind, and half an intellect
Safely esconced with the ulama,
the other halves lie there,
waiting for eternity
My passport to Heaven

Forgive me, God
For reading
Forgive me, God
For believing enough
to want to believe
Forgive me, God
For thinking that the Quran
was for me

I looked into the Quran today,
I really looked because I thought
that was what You wanted of me

I am sorry

MIS

Sacred Bureaucracy?

Egyptian blogger Nora Younis writes of how she was required to specify not only her religion but that of her lawyer at the Real Estate Registration Office in the city in which she lives:

"Yesterday morning I went to the Real Estate Registration Office to sign a notary form, appointing my lawyer. There, I was surprised to discover that I was required to prove my religion and the religion of the lawyer I wanted to appoint. And because I wasn't planning to get married to the lawyer yet, it never crossed my mine to ask him about his religion before this. All that I wanted was a competent lawyer for a specific cast and I don't think it will effect me or the Egyptian state whether he was Jewish or Shinto or even an adherent of the sacred carrot!" (read more here at www.globalvoicesonline.org)

Makes me think of where we are headed with the way things are going here with the so called Islamization of this country. And before anyone says it, the fact that it is happening elsewhere does not make it any better. Bureaucratic process is not sacred just because it is is put in place in the name of Islam. For those who think otherwise, I would be glad to hear from you - in a constructive manner. If bureaucracy was sacred and divine, as some can be understood to suggest, explain how a Malaysian syariah court judge and a religious department officer have been charged for corruption (see here). Or is the Anti-Corruption Agency blaspheming too?

MIS

Latifah Mat Zin: Reaffirming The Supremacy Of The Constitution (II)

The Politicisation Of The Constitution

May 13th, 1969

I will start by conceding that the terms of the Federal Constitution from its outset were the result of a political compromise struck between the various prime movers of the Merdeka initiative. In that way, it could be said that the Constitution was politicized from the very beginning.

Having said that, it must be borne in mind that the Constitution that was put in place in 1957 was sufficiently comprehensive and even handed so as to provide protection for all Malayans, and with the entry of Sabah and Sarawak into the Federation, all Malaysians. For this reason, for the purpose of the discussion herein I will take the position that the Constitution was not politicized until 1988 and after. This is explained in the next section.

Questions may be asked about the events of May 13th 1969. These events clearly had an impact on the national psyche where the issue of race relations was concerned. The steps taken to ostensibly deal with the situation have been described as having amounted, in effect, to steps in aid of a ‘regime change’ (Kua Kia Soong, May 13: Declassified Documents On The Malaysian Riot Of 1969). Positions taken, policies and legislative measures introduced in the aftermath of May 13th clearly laid foundation for, and gave life to, the ‘ketuanan Melayu’ mindset in a way that hindsight allows us to see may not have been the best way to move forward. If nothing else, it entrenched communitarian politics and fueled the supremacist agenda of the UMNO.

That being said, the Constitution itself was not amended in a way so as to shift the constitutional compact achieved in 1957.


1988

The events of 1987 and 1988 however tell a different story. I had previously written here (Back To Basics) of how the period between 1987 and 1988 seriously damaged this nation. The analysis has relevance to this discussion as it was during this period that the Mahathir Administration politicized the Constitution.


Article 121(1)

Where the Constitution was concerned, two key events have to be underscored. The first was the amendment to Article 121(1) of the Constitution. The amendment purported to remove the entrenched right to judicial review. It did this by deleting the constitutional declaration that the judicial power of the Federation vested in the Judiciary and substituting in its place a declaration that the jurisdiction and power of the High Court was as vested by Federal law. Put another way, the amendment purported to yoke and suborn the Judiciary to Parliament. Constitutional supremacy as we knew it became Parliamentary Supremacy.

This did not bode well as it encroached into the very essence of the Malaysian democratic framework, premised on the separation of powers and the independence of the Judiciary that entail and required. More so for the fact that the Barisan Nasional had, and still has, control of two-thirds of Parliament. This meant that laws ousting the jurisdiction and power of the Courts to inquire into particular areas of Executive function could be, and were in fact, created. For instance, the Internal Security Act has a provision (section 8B) that impedes the right of review over the decision of the Minister concerned to detain a person other than on technical grounds. What this means is, and this is the approach that has been taken by the Malaysian courts, that the decision by the Minister to detain someone in preventive detention is for all purposes and intents beyond challenge.

Through this, the Executive, and as such the Barisan Nasional, and more particularly UMNO, immunized itself from effective and meaningful supervision. The foundations for arbitrary government were laid.

(It should be noted however that though the Federal Court in Sugumar Balakrishnan gave effect to the notion of Parliamentary Supremacy, the Court of Appeal in Kok Wah Kuan more recently concluded that the Judiciary retains the jurisdiction to grant judicial review notwithstanding the amendment)


A121(1A)

The recently controversial Article 121(1A) was introduced at the same time in response to concerns raised by some quarters that the High Court was interfering with the affairs of the syariah courts.

As I have said before, this provision in itself does not present any real problems. It merely states that what is within the jurisdiction of the syariah courts are not within the jurisdiction of the civil High Court. This is equally true of matters within the jurisdiction of the sessions or magistrates courts, or the native courts in East Malaysia.

These courts are courts other than the ‘superior’ courts, a term used to described the judicial system created by the Constitution comprising of the High Court of West Malaysia, the High Court of Sabah and Sarawak, the Court of Appeal and the Federal Court. The other courts envisaged by the Constitution, including the subordinate courts (sessions and magistrates) are created through enacted law and not the Constitution directly. For this reason, the Constitution refers to the subordinate courts as ‘inferior courts’. Courts throughout the common law world have used this term to refer to courts of a similar nature. In Malaysia, the native court and the Industrial Court have been judicially referred to as ‘inferior courts’.

The syariah courts stand on the same footing. They are created by the State Assembly, and Parliament where the Federal Territories are concerned, through enacted law. They are not created by the Constitution.

One of the principal features of an inferior court is that it is subject to the supervisory powers of the High Court. This is more usually effected through a process known as judicial review. In judicial review, the general rule is that the supervising court is concerned with the process by which the inferior court came to its decision and not with the merits of the decision (other than where the merits are compromised by the compromising of the process by the inferior court. In testing the process, the High Court more usually considers whether the inferior court had the jurisdiction to make a decision over the matter in issue, gave all parties concerned an adequate right to be heard, other aspects of fairness were ensured, that all relevant factors were taken into consideration, that no irrelevant factors were taken into consideration, and that the decision was not unreasonable.

Article 121(1A) did not oust the power of the High Court to carry out this supervisory process, if called upon to do so. More significantly, Article 121(1A) did not oust the jurisdiction of the High Court. It merely declared the state of play between the civil courts and the syariah courts. This means that Article 121(1A) was not intended to oust the jurisdiction of the High Court over matters of an ‘Islamic’ nature. Neither was it intended to provide a means by which matters in the syariah court were to be ‘shielded’ from supervisory scrutiny. The same questions were to be asked, starting with whether the matter in issue was one within the jurisdiction of the syariah court and could be decided in the way the syariah court was going to or did.

As an illustration, consider the hypothetical situation of a non-muslim being convicted of an offence by the syariah court. This is clearly outside the jurisdiction of the syariah court as the syariah court only has jurisdiction over “persons professing the religion of Islam” (more on this later in this series). Article 121(1A) would no impede the exercise of the High Court’s power of judicial review to ensure that the conviction was quashed and the sentence not effected.

In light of this, it is critical to appreciate how the jurisdiction of the syariah court is determined. For this purpose, it is necessary to understand what law is applied in Malaysia and how that law is made. Put very simply, the law that is applied in this country is enacted law.

Being a Federal system, the legislature comprises of both the federal legislature, Parliament, and the state legislatures, the State Assemblies. There is a division of the areas in which the federal and state legislatures are empowered to make law. These areas are enumerated in a Federal List, a State List and a Concurrent List (matters which both legislatures can make law on certain conditions) which appear in the 9th Schedule to the Constitution.

This means that unless and until law is made by Parliament or any of the State Assemblies, there is no law. This principle cuts across the board and includes within its ambit Islamic law, which is contained in the State List (Item 1). As such, it does not matter that a particular principle of Islamic law exists by virtue of the Al-Quran, the Hadith or the scholarly works of jurists, until such principle is codified into law by the legislature in a constitutional manner the principle is not applicable as law.

Amongst the laws pertaining to matters of Islam that the State Assembly may make are laws providing for the constitution, Organisation and procedure of Syariah courts. Item 1 of the State List provides that these courts shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in Item 1. This translates into the jurisdiction of the syariah courts being created and vested by laws made in respect of matters contained in Item 1. A corollary to this is that until and unless such law is made, vesting the syariah courts with jurisdiction, there is no jurisdiction. Until jurisdiction is so vested, there is no question of the separation of jurisdiction contemplated under Article 121(1A) applying.

The foregoing analysis is not controversial. Aspects of this analysis featured in several key decisions of the Supreme Court in the period before 1999, in particular those in the cases of Dalip Kaur, Habibullah, Tang Sung Moi and Sukma Dharmawan. These decisions mapped out the landscape admirably and with sufficient clarity so as to have given adequate guidance for future cases.

The question that arises is in light of these decision and the settled principles relevant to issues arising out of the harmonizing of the syariah and civil court jurisdictions, what happened? The next part of this segment addresses this.

MIS

Article 11 Meets Select Committee On National Unity

'Article 11', the coalition of NGOs was invited by the Parliamentary Select Committee On National Unity to make representations before the Committee on 6th August 2007. The coalition attended and made representations through Zainah Anwar and myself. A statement was submitted. The full text appears below.

Statement By “Article 11”
Hearing By Parliamentary Select Committee On National Unity (06.08.2007)

Article 11’s position from the outset, as has been the case for the civil society organisations that make up the coalition, has been the position declared by HRH The Regent Of Perak as reported in the media on 6th August 2007.

This position is:

• that the Federal Constitution is the supreme law of the land. All laws, state actions and policies are to be tested against the Constitution. If they contravene the Constitution, these laws, actions and policies are void;

• Malaysia is not an Islamic State. Our Constitution and a binding decision of the Supreme Court have rejected any such notion. The public, and as such the governing, law of this country is law premised on universal values equally cherished and applicable to all; and

• The Rule of Law is essential to the continued progress and development of this Country. The Rule of Law must be blind to ethnic and religious influences. The special status of Malays, natives of Sabah and Sarawak and the place of Islam in the Federation have, and should have, no bearing on the Rule of Law. The laws of Malaysia must serve all Malaysians.
  

Article 11 was and is concerned that:

• the 3 points stated above have not been fully appreciated by those charged with responsibility amongst us. There has, sadly, been an undermining of the Rule of Law in a series of actions and decisions of the Court that have run counter to the letter and spirit of the Federal Constitution including:

1. the case of Kaliammah, the widow of the late P Moorthy;
2. the case of Lina Joy; and
3. the case of Subashini.

• These decisions have not only resulted in injustice to the parties concerned but have also laid down precedents which have created deep rifts in society. The fact that these decisions have been justified by reference to the Constitution makes the situation more alarming. It points to:

1. a state of affairs where the aspirations of some, in particular the aspiration for a greater role for what some perceive as precepts of Islam in public life, have become a reality through processes which are not constitutional or even legal;
2. these unconstitutional processes include:
   

• the irresponsible and reckless declarations by some quarters as to Malaysia being an Islamic State despite this not being the case and the stifling of free debate over such declarations (This should be compared and contrasted to the approach taken by the Government in 1988 when the then Chief Justice was removed on the following ground:

(charge 4) - Your attempt to restate the law generally along Islamic legal principles ignores the character of Malaysian society as one which is multi-religious and multi-racial with cultural differences. No responsible Government can allow the postulation of such views by the Head of the Judiciary without cause for consternation among its non-Muslim population. Furthermore your statement violates established principles of judicial interpretation widely accepted in the courts of Malaysia and in the Commonwealth.;

• the re-writing of history to attempt to justify claims, for political reason or otherwise, that Malaysia is an Islamic State and a greater role for the perceived precepts of Islam in public life including declarations to the effect that this nation was founded by Muslims (consider the Government response to a written query by SUHAKAM as to Malaysia being an Islamic State, (published in SUHAKAM Annual Report 2003, pp 285-286) in which the following points were made);

o the nation was founded by Muslims;

o the Head of the Nation is a, and the government is in the hands of, Muslim(s);

o the majority of its citizenry are Muslims and most of their cultural and social elements are influenced by the culture of Islam;

o the Islamic umah (in Malaysia) is free to abide by Islamic Law (‘Syariat Islam’), and are even supported in this regard by the Government;

o systems to increase religious observance of ‘munakahat’ (religious rules pertaining to marriage) and ‘muamalat’ (rules pertaining to societal issues) are implemented all over the nation;

o Islamic education is taught from primary school to institution of tertiary education level and its quality are continuously being improved;

o The existence of Sharia courts and Sharia laws; and

o The existence of other Islamic institutions which expand the greatness of Islam.

• continued use of divisive labels such as ‘Islamic State’ and the emphasis on the greater role of the precepts of Islam without regard to the sensitivities of all concerned communities nor of the ‘policy’ positions such declaration will take in the minds of lower ranking bureaucrats and administrators. Bearing in mind the close link between ethnicity and religion for the Malays, and the prevalence of Malays in the public administration, this has resulted in discriminatory practices that run counter to any notions of unity and equality. This takes on particular significance in the face of assertions of ‘Ketuanan Melayu’; • as a consequence of the foregoing, or otherwise, this has resulted in an increasing defiance of the Constitution and oaths to uphold the Constitution by public administrators;

• the use of inflammatory language and religious incitement has not been adequately curtailed. Conversely, they have been allowed to shape government response to the subject of such language and incitement. Illustrating this is the directive to Article 11 to desist in its efforts to promote the Constitution and constitutionalism as a consequence of hostile and untruthful distortions that were given validity through State action. It is significant that much of what Article 11 stated or sought to state was given prominence on the front page of the New Straits Times on 06.08.2007 when declared by HRH The Regent of Perak;

It is imperative therefore that:

• all State actors be made to appreciate that the Constitution is the supreme law;

• the supremacy of the Constitution be reaffirmed;

• mechanisms be put in place that ensure the appointment of persons to public office who are qualified and competent to discharge their functions and duties in a manner contemplated by the Constitution. The lack of such individuals in the public administration has been a key factor in the process that has led us to where we are as a nation. This can be corrected as long as there is adequate political will; and

• the Attorney General’s Chambers be called upon to determine the state of affairs and make such recommendations as are necessary to strengthen the existing Constitutional structures if there is a need for the same. Such deliberations must be made public and be conducted in conjunction with civil society to ensure that all interests are taken into consideration. It is disconcerting to note that as of late the AG’s Chambers appears to have been at the vanguard of a push towards Islamisation. This is illustrated by the fact that the web-site declares as a mission statement the efforts of chambers to ensure that all civil laws are syariah compliant.

Article 11 wishes to express its gratitude for the opportunity afforded to it to present its views and to make representations. Article 11 also wishes to reaffirm its commitment to nation building and the Federal Constitution in light of the call by HRH The Regent Of Perak that civil society stands up and be counted.

***

MIS

The Riz Khan Interview

For those who missed it or had not realised that I was on the Riz Khan show with Haji Sulaiman, here's the link

The show looks at the role of Islam in Malaysia and the reasons underlying the recent controversies in light of assertions internationally that Malaysia is a moderate, progressive Muslim country. The issues are presented through our differing viewpoints. Though the nuances of the debate were beginning to emerge when the show ended, the show provides some useful insights.

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Latifah Mat Zin: Reaffirming The Supremacy Of The Constitution

Last Wednesday, the Federal Court handed down its judgment in the case of Latifah Mat Zin. Though the impact of the judgment on ‘hard’ or controversial cases like those of Lina Joy, Subashini and Moorthy is yet to be fully understood, it is apparent that the judgment goes a long way in helping us unravel the legal knots that have resulted in the injustices that those cases, and cases like it, serve to illustrate. It also provides us an insight into where we stand as a society 50 years into the life of this nation.

In the interests of full disclosure, it should be known that I appeared as counsel for Latifah Mat Zin.

This posting aims to explore the impact of the Latifah Mat Zin decision on the legal positions that resulted in the majority decisions of the Federal Court and Court of Appeal respectively in Lina Joy and Subashini, and also the many High Court decisions that have resulted in litigants being turned away in deference to the syariah courts.

For a more complete understanding, it will be necessary to restate basic principles and re-explore old ground. I ask for your indulgence in the interests of clarity.


The Supremacy Of The Constitution: Is Malaysia An Islamic State?

For some years now, civil society activists have been warning of an undermining of the Rule of Law through efforts aimed at securing official recognition of the purported supremacy of syariah law and the syariah legal system in Malaysia. Though the aspiration for a greater role for syariah law in the public life of Malaysians has had a place in Malaysia for many years, a strong commitment on the part of the Judiciary and the Executive to the Federal Constitution and constitutionalism had helped keep the aspiration in check.

Grounded as it was on recognition of the supremacy of the Federal Constitution and the secular status of public law, this commitment ensured the perpetuation of the multi-racial, multi-religious and pluralist Malaysia that had been the vision of those who set us on our course for freedom and a free life. It was understood then, and remains a truth now, that undue emphasis on race and religion would have a destabilizing effect on the nation. It would also result in discriminatory attitudes and practices that would undermine the national vision of an integrated and unified society.

The fact that from the outset the balance struck between the competing interests was a delicate one was not reflective of a precariousness or a doubt as to the value of the this vision. Rather, it reflected the understanding and sensitivity of those charged with the responsibility of laying down a firm foundation for this country to two basic truths. Firstly, that each and every Malayan, later Malaysian, was entitled to live his or her dream to the fullest. Secondly, that in order to do this all Malaysians had to be guaranteed the freedoms that would allow for this and the necessary diversity.

It is for this reason that upon Malaya achieving independence, a Federal Constitution that put in place a secular system of public law was entrenched as the supreme law of the nation. By public law it is meant the legal framework that puts and hold in place the system of governance and the underlying paradigm. By constitutional supremacy, it is meant that every action of the state or law would have to be tested against the Federal Constitution to ensure compliance. If the act or law were unconstitutional it would have no legal effect.

The use of the word ‘secular’ by our founding fathers was never intended to suggest an anti-religious or an anti-Islamic state of governance. Rather, it was intended to assure Malayans, later Malaysians, that Islam would not be made the basis of law and governmental action despite it being the religion of the Federation. Put another way, it was intended to reassure all Malaysians that in administering the country the Government would be persuaded only by good sense and the universal values applicable to all Malaysians. The syariah was never intended to be the basic law or benchmark against which actions or laws were to be tested.

The Federal Constitution however envisages that laws would be enacted to fulfill the personal law requirements of Muslims. It manifestly recognizes that the syariah would not be made the basic or supreme law. The Federal Constitution declared, and still declares, itself as the Supreme Law. Unlike the Constitution of Pakistan that entrenches the syariah as the basis of all law, the Federal Constitution does not accord the syariah law such status. For this reason, it is wholly incorrect to refer to Malaysia as an Islamic State.

This state of affairs was recognized by the then Supreme Court in 1988 in the case of Che Omar Che Soh which characterized our public law sphere as secular. The Court also observed that unless the Federal Constitution was amended to reflect the syariah law as the supreme or basic law, this would be the case.

The Federal Constitution has not been amended to reflect that position. Article 4(1) still declares the Federal Constitution as the Supreme Law.

(Next, Part II: The Politicisation Of The Constitution)

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