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
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
