The Conference of Rulers can play a reconciliatory role and help to repair the frayed social fabric.
NIK Raina Nik Abdul Aziz, the Borders bookstore branch manager, is beseeching the Yang di-Pertuan Agong for help to secure an end to her tribulation at the hands of the Federal Territory Islamic Affairs Department (Jawi).
Nik Raina is an ordinary human being working to make ends meet. As store manager, she takes care of the administration of the store. It is not her job to read, censure and ban un-Islamic books. That is the job of Jawi and the Home Ministry.
For reasons best known to them, the offending book, Irshad Manji’s Allah, Liberty and Love, was not banned prior to Jawi’s raid on the bookstore, seizure of the publication, arrest of some workers and summoning of others, some of whom were non-Muslim. The book ban took place only a few weeks after the raid.
Raina’s supportive employer went to the court. It was argued ably that she had broken no law.
At the time of her arrest in 2012, the book in question had not been banned. Raina did not know, and could not have known, the book’s controversial content.
Three courts – the High Court, the Court of Appeal and the Syariah High Court – all ruled in Raina’s favour. But Jawi is still after her scalp.
It has filed an appeal to the Syariah Court of Appeal even though its action, though technically legal, is a clear defiance of the High Court and Court of Appeal rulings on the illegality of Jawi’s actions.
In turn, Nik Raina’s move to appeal to the Yang di-Pertuan Agong is unprecedented. It draws our attention to the role of our King in the administration of justice.
Further, it points to the need for a uniting and reconciling institution that can resolve the cascading conflict of jurisdiction cases between our civil and syariah courts.
Role of Yang di-Pertuan Agong: Under Article 3(5) of the Constitution, the King is the head of the religion of Islam in the federal territories. While it is not his job to play the role of the Caliphs of yesteryears or to direct the prosecution or conduct of syariah trials, surely as head of the religion he can counsel, caution and warn that Jawi’s behaviour is bringing a bad name to the religion and to the religious establishment’s commitment to justice and fairness.
Conference of Rulers: On a broader plane, there appears an urgent need for a national institution to mediate and reconcile the burgeoning conflicts between syariah and civil courts. The Conference of Rulers could be this august institution.
Under Article 38(2), besides performing many specified functions, the Conference has the power to “deliberate on questions of national policy ... and any other matter that it thinks fit”. This deliberative function casts it in the role of a unique constitutional auditor.
The Conference is not constrained by the federal-state division of powers. It can bring to bear on any matter which it thinks fit the power and prestige of its office, and to provide a guiding hand.
As the Sultans are heads of Islam in their respective states and as the Yang di-Pertuan Agong is the head of Islam in all other territories of the federation, the Conference of Rulers is uniquely placed to adjudicate on all matters that touch upon Islam.
As the Yang di-Pertan Agong and the Sultans are the sovereigns of all their subjects, whether Muslim or non-Muslim, they are also well placed to guard the interests of the non-Muslim citizens of the country.
Review of syariah laws: Acting under Article 38(2), the Conference could ask the Federal Government to report to the Conference on how to resolve the emerging conflicts between syariah courts and civil courts. It could caution the Federal Government to remove the existing conflicts and to avoid future conflicts between the supreme Constitution and syariah laws.
It could ask the Federal Government to consult with national and international scholars and to report to the Conference on how far state laws and fatwas passed in the name of Islam are actually within the meaning of the constitutional phrase in Schedule 9, List II “to create and punish offences against the precepts of Islam”.
Committee of the Conference of Rulers: Acting under Article 38(2) the Conference could, by resolution, set up a Committee of the Conference of Rulers to advise it on all inter-religious disputes as well as family law matters where one party is a Muslim and the other a non-Muslim. The membership of the Committee could be mixed – three Muslim jurists and two non-Muslim scholars appointed by the Conference for a specified term.
Conflict of laws division: Relying on the judicial opinion in Subashini a/p Rajasingam v Saravanana a/l Thangathoray that civil courts retain jurisdiction over a marriage solemnised under civil law, the Malay Rulers could advise the High Court to set up a new Conflict of Laws Division (on the lines of its Mu’amalah Unit) to adjudicate on family law disputes in which one party is a Muslim, the other a non-Muslim.
Special Court: Another alternative is for the conference to advise the Government to put together a bipartisan two-thirds majority in Parliament to insert a new Article 121(1AA) to the Constitution to provide for a Special Court to try cases in which there is a conflict of jurisdiction between syariah and civil courts.
A show of leadership by the Conference of Rulers in these testing times of drift would enhance the constitutional role of this great and august institution. The words and deeds of Their Majesties would help to repair our frayed social fabric and to enhance confidence in our system of justice.
Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at firstname.lastname@example.org. The views expressed here are entirely his own.