In a country with a supreme Constitution, the courts cannot be ousted on issues of constitutionality.
LIKE most legal systems, Malaysia has many streams of justice. The Magistrates Courts, Sessions Courts, High Courts, Court of Appeal and Federal Court constitute our “civil court” system. Side by side with civil law, other systems of law and mechanisms for dispute resolution exist.
> Each State has its own hierarchy of Syariah Courts. These courts apply enacted
Islamic law and Malay adat in spheres limited and defined by Schedule 9, List II, Paragraph 1.
> Sabah and Sarawak have native laws enforced by Native Courts.
> Under Articles 182-183 of the Federal Constitution, a Special Court exists to try cases by or against Malay Rulers.
> There are scores of statutory tribunals known by a variety of names like Industrial Court, Court Martial, Valuation Tribunal, Commissioner of Income Tax and Disciplinary Committees and Tribunals.
> Private sector organisations like clubs, businesses and industries have their own domestic tribunals.
Such “legal pluralism” beautifully recognises the multiplicity of fountains from which our law emanates. But it also creates conflicts of jurisdiction. Up to now, the general statutory and judicial approach was to respect the separateness of parallel streams of justice and to accept that a valid decision of a special court or tribunal was final and conclusive and not appealable to the ordinary civil courts.
To this separateness and autonomy, one exception was always in place. By virtue of the supreme Constitution and many statutes like the Specific Relief Act, the superior civil courts retained a supervisory, “review power” to examine the constitutionality and legality of all determinations by inferior courts, tribunals and quasi-judicial bodies.
In the years since the insertion of Article 121(1A) which states that civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”, the supervisory power of the High Court in relation to syariah laws and syariah court decisions has come under severe questioning.
There are views that the Federal Constitution “does not limit the Islamic code”, that “syariah courts are not subject to the Constitution” and are of equal status to civil courts.
These views have undoubted populist appeal but questionable legal basis.
They fail to distinguish between what is aspirational and what is the legal reality. The Federal Constitution’s scheme of things is quite different.
Constitutional supremacy: According to Article 4(1), the Constitution is the supreme law of the Federation. No person, authority or institution, including a State Assembly or a syariah court, is above the Constitution.
Judicial review: Any law, whether federal or state, primary or secondary, civil or religious, pre-Merdeka or post-Merdeka, is subject to constitutional review by the superior civil courts in accordance with Articles 4(1) and 162(6). It is established law in Latifah Mat Zin v Rosmawati Sharibon (2007) that questions of constitutionality are for the civil and not the syariah courts to adjudicate upon.
Islam: Though Islam has a most exalted position as the religion of the Federation, the syariah is not the basic law of the land. In Che Omar Che Soh (1988), it was held that the Constitution and not the syariah is the litmus test of legality.
Article 3(1) on Islam as the religion of the Federation is qualified by Article 3(4), which clearly states that “nothing in this article derogates from any other provision of the Constitution”. This means that Article 3(1) does not override any other provision of the Constitution.
Article 121(1A): Under Article 121(1A), the syariah courts are immune from interference only as long as they remain within their jurisdiction, i.e. within powers conferred on them by state enactments. State Enactments in turn must confine themselves to the 26 topics allocated to them by Schedule 9 List 2 Paragraph 1.
Thus, a Muslim marriage or divorce is outside the purview of the civil courts. But if the State Enactment violates the Federal Constitution, the civil courts can invalidate it. Take, for example, the recent Negri Sembilan cross-dressers’ case.
If a Syariah Court acts unconstitutionally, e.g. it tries a non-Muslim for a syariah offence or it dissolves a civil marriage in which one party is a non-Muslim as in the Indira Gandhi case, the High Court is empowered to declare otherwise.
Likewise, if syariah officials act illegally as in the 2013 Borders Bookstore case, where they unlawfully seized a book that was not yet banned and then interrogated a non-Muslim employee of the bookstore which they have no power to do, the civil courts can issue the necessary declaration.
In a country with a supreme Constitution, the courts cannot be ousted on issues of constitutionality. For example, under the Second Schedule of the Constitution, Part III, Para 2 “A decision of the Federal Government (on deprivation of citizenship) shall not be subject to appeal or review in any court”. Despite such explicit language, courts have been willing to examine the exercise of the minister’s discretion.
Status of syariah courts: The status of syariah courts is determinable by looking at the mode of their creation; matters within their jurisdiction; persons subject to their control; and penalties they may impose.
The High Court, the Court of Appeal and the Federal Court are established by the Federal Constitution. In the appointment of judges to these courts, the Prime Minister, the top judges, the Yang di-Pertuan Agong and the Conference of Rulers are involved.
In contrast, syariah courts are not created by the Federal or State Constitutions but are established by ordinary State Enactments. Most of the safeguards available to superior court judges are not conferred on syariah judges.
Syariah courts do not have a general power to try all issues of Islamic law. According to Schedule 9, List II, Para 1 only the following are within their jurisdiction: 25 personal law matters plus power to punish offences against the precepts of Islam except in relation to matters in the Federal List or covered by federal law. Almost all hudud offences like murder, robbery, theft and rape are triable by federal courts and, therefore, outside the jurisdiction of syariah courts. Likewise, homosexuality, gambling and betting are penal code offences.
Syariah courts have jurisdiction only over persons “who profess the religion of Islam”. A non-Muslim is not subject to the syariah court. His acquiescence is irrelevant. Jurisdiction comes from law, not from consent.
Under the Syariah Courts Criminal jurisdiction Act 1965, Syariah courts have the power to impose six strokes of the rotan, RM5,000 fine and three years’ jail. In comparative terms, this is lesser than the jurisdiction of a Magistrates Court!
It should be clear, therefore, that on existing law it is not correct to attribute to enacted Islamic law or to syariah courts a legal superiority over constitutional provisions and total immunity from constitutional review by the civil courts.
Of course such an aspiration may come to pass one day, if the pace and range of Islamisation continues. But we are not there yet. The Constitution is still supreme. Proponents of “one country, two systems” or two equal and parallel legal systems have to be level-headed about the legal, political, economic and social implications of such a significant change to the constitution’s basic structure.
Any proposal for change must be accomplished in accordance with constitutional procedures and not simply by the might of public opinion. Under Articles 159(5) and 161E, the consent of the Conference of Rulers and the Governors of Sabah and Sarawak will be needed.
> Prof Shad Faruqi is Emeritus Professor of Law at UiTM. He wishes all readers a Happy New Year. The views expressed here are entirely the writer’s own. The STAR Home News Opinion 8 Jan 2015