(Part 1) For The Attention Of The Federal Court : The position of the Shariah Court in the Malaysian legal system

This is taken from the Malay Mail here.  

It is a clear and precise piece of legal writing by the lawyer Rosli Dahalan and Fawza Sabila Faudzi.  The English language and the grammar used are flawless. Congratulations.  This article is an education about the status of the shariah laws and shariah courts as spelled out by the Federal Constitution.  It is slightly long but do read it.

I hope the Higher Courts (High Court, Court of Appeals and the Federal Court) will also read this.  I have some comments.

The position of the Shariah Court in the Malaysian legal system — Rosli Dahlan and Fawza Sabila Faudzi

May 15, 2015 

MAY 15 — It has been said that Islamic law and the civil law exist as parallel systems in Malaysia. The proposition, while attractive, is grossly inaccurate in law. As it stands today, the administration of Islamic law is confined to personal law for Muslims and the Shariah court is subordinate to the courts established by the Federal Constitution and under federal law, as this article will show.

The Shariah court has in recent years become a prominent subject in public discussion, not least of all with the constitutional provision that “Islam is the religion of the Federation”.

It is vital that the history of how religion came to be inserted in the Federal Constitution be first examined, objectively and dispassionately, given that the subject is fraught with difficulty.

Federation of Malaya

The Federal Constitution has its roots in the Federation of Malaya Agreement 1948 (“the FMA 1948”) which established a federation known as the Federation of Malaya or Persekutuan Tanah Melayu comprising the nine Malay states[ii] and the Settlements[iii] of Penang and Malacca.[iv] It was envisaged that the Federation, while remaining under British rule for the time being, would progress towards eventual self-government.[v]

Historically, British rule in the Malay States eschewed interference with the powers of the Malay Rulers on matters relating to Islam and Malay customs. This position was maintained in the FMA 1948,[vi] with a proviso that federal legislation could be made for enabling the courts to ascertain Islamic law or Malay customs concerning matters brought before them for adjudication.[vii]

As for legislation, each Malay State had the power to pass laws on Islam and Malay customs to the extent not repugnant to any law passed by the legislative council of the Federation.[viii] This distribution of legislative powers between the Federation and the Malay States remains unchanged to this day. Islam as the religion of the Federation was to come later.

The Reid Commission

In 1956, as one of the final steps taken in the direction of self-government for the Federation, an independent commission headed by Lord Reid[ix] was appointed by the British Crown and the Conference of Rulers to make recommendations for a constitution for an independent Federation of Malaya.

The draft constitution and the report submitted by the Reid Commission was passed with amendments and approved by the Federal Legislative Council in July 1957.

In the course of the deliberations of the Reid Commission, the then-dominant political party called the Alliance submitted a proposal that Islam be made the official religion.[x]

The Reid Commission decided to not make any provision for an official religion, preferring to maintain the status quo by retaining religion as a State matter[xi] as they were concerned over the apparent contradiction between the Alliance declaration that Malaya would be a secular state and the proposed provision for Islam to be the official religion of the Federation.[xii]

This omission led to the formation of a Working Party comprising representatives of the British Government, the Malay Rulers and the Alliance coalition to review the Reid Report.[xiii] Tunku Abdul Rahman argued strongly for an article declaring Islam as the official religion of the Federation.[xiv] The component parties in the Alliance agreed that the proposed provisions should include two provisos — first, that it would not affect the position of the Rulers as head of religion in their respective States, and second, that the practice and propagation of other religions in the Federation would be assured under the Constitution.[xv]

Justice Sheik Abdul Hamid, the member of the Reid Commission from Pakistan who initially agreed with the other members to omit any provision for an official religion in the draft constitution, later proposed in his Notes of Dissent that the Alliance proposal be adopted as it was “innocuous”, pointing out that at least 15 other countries had similar provisions in their constitutions.[xvi]

The Federation of Malaya government, in a White Paper published in 1957, explaining the changes to the recommendations of the Reid Commission, stated:

“There has been included in the proposed Federation Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practise his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion.”[xvii]

In the event, an express provision was made in Article 3(1), the terms of which have remained unchanged since:

“Islam is the religion of the Federation but other religions may be practised in peace and harmony in any part of the Federation.”

The Malay States and the Settlements comprised in the Federation of Malaya became independent as from 31 August 1957 by virtue of the Federation of Malaya Agreement 1957, given force of law by the Federal Constitution Ordinance 1957.[xviii]

That the Federation was to be a secular nation was reiterated by Tunku Abdul Rahman in a speech before the legislative council:

“I would like to make it clear that this country is not an Islamic state as it is generally understood, we merely provided that Islam shall be the official religion of the State.”[xix]

Malaysia

Prior to the formation of Malaysia, a commission of inquiry chaired by Lord Cobbold[xx] was appointed to ascertain the views of the people of North Borneo and Sarawak, and upon assessment of those views, to make recommendations on the inclusion of North Borneo and Sarawak in the proposed Federation of Malaysia and issued a report in 1962.[xxi] Although the British member of the Cobbold Commission recommended that the Federal provision on religion should not be extended to Borneo territories which have a non-Muslim majority, the Malayan members recommended[xxii] otherwise:

“... we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardises freedom of religion in the Federation, which in effect would be secular.”

In 1963, the Federal Constitution was amended upon the admission of Singapore and the North Borneo states of Sabah and Sarawak to the Federation.[xxiii]

Article 3 of the Federal Constitution remained unchanged.

Public and private aspects of Islam in Malaysia

In 1988, a full bench of five in the Supreme Court (as the Federal Court was then known) had occasion to consider Article 3 in an appeal against a mandatory death sentence for drug trafficking and possession of firearms. It was contended on behalf of the accused that Islam being the religion of the Federation, as declared in the Federal Constitution, and the Federal Constitution being the supreme law of the Federation, the imposition of the death penalty was unconstitutional, being contrary to Islamic injunction.[xxiv]

Although the Supreme Court acknowledged that Islam was not just a mere collection of dogmas and rituals but a complete way of life covering all fields of human activities, be they private or public, legal, political, economic, social, cultural, moral or judicial,[xxv] it held that this was not the meaning intended by the framers of the Constitution. So far as Islam was concerned, the result of the development of law by the British in Malaya had the effect of turning the legal system into a secular institution. Thus, all laws, including the administration of Islamic law, had to be validated through a secular fiat.[xxvi]

The court also observed that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in the narrow confines of the law of marriage, divorce and inheritance — the sphere of personal law. This private aspect of Islamic law is only applicable to Muslims as their personal law.[xxvii]

Islam being the religion of the Federation did not mean that laws passed by Parliament must be imbued with Islamic religious principles; nor did the existence of Shariah law prior to independence require that laws of general application must conform to the Shariah, for to hold otherwise would be contrary to the constitutional and legal history of the Federation and also to the Civil Law Act 1956, which provides for the reception of English common law in this country.[xxviii]

It is in this sense of the dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. Religion being often described as a sensitive matter in Malaysia, the concluding words of Salleh Abbas LP are noteworthy:

“... we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”[xxix]

Jurisdictional controversies

This dichotomy between the public and private aspects of Islamic law, when ignored, has given rise to difficulties.

In recent years, the bitter custody and child’s religious rights battles in Subashini Rajasingam,[xxx] Indira Gandhi[xxxi] and Deepa Subramaniam[xxxii] sparked new conflicts between the Shariah court and the civil court. In these three cases, all involving Hindu married couples with children, the husband had converted to Islam, taken the children away from their mothers and in two cases, converted the children also to Islam. Controversy also arose when State religious authorities and the Shariah court purported to subject the non-Muslim spouse to the jurisdiction of the Shariah court, although state Shariah laws clearly provided that the Shariah court had jurisdiction only over Muslims. Another issue was the reluctance of the police to act on the complaints made by the non-Muslim spouse.

In the now infamous Borders case,[xxxiii] in 2012, officers of JAWI,[xxxiv] accompanied by the media, raided the Borders Bookstore at The Gardens, Mid Valley City in Kuala Lumpur. During the raid, the JAWI officers seized several books by international author Irshad Manji, titled Allah, Kebebasan dan Cinta, a Malay translation of Allah, Liberty and Love which was also seized on the grounds that the books were prohibited.[xxxv]

At the material time, the publications were, in fact, not subject to any prohibition order by the Minister of Home Affairs. The JAWI officers proceeded to examine the Muslim and non-Muslim employees of Borders, and issued orders compelling them to be subject to further investigation and examination.

The next day, a similar raid was conducted at another Borders store. Notwithstanding the full co-operation given by Borders and its employees, the JAWI officers arrested one Nik Raina Nik Abdul Aziz, who was the store manager, and charged her for disseminating or distributing publications deemed contrary to Islamic law.

Both the High Court[xxxvi] and the Court of Appeal[xxxvii] held that the act of enforcement by JAWI was unlawful and illegal, primarily on the grounds that the books were in fact not subject to any prohibition order at the material time. The Court of Appeal was of the view that any law, be it Federal or State, that breached the Federal Constitution must be struck down and any Federal or any State Government and its agencies that apply the law wrongfully must be corrected.[xxxviii]


In June 2014, enforcement officers of JHEAINS arrested 17 people at a wedding reception. Those arrested were transgender persons, nicknamed mak andam, present at the wedding in service as    wedding planners and beauticians. They were charged for cross-dressing against the Syariah law in Negeri Sembilan.

At that time, three other mak andam had appealed to the Court of Appeal against the same Syariah law as being unconstitutional and the arrest of the 17 brought the issue to prominence in the news. In the event, the Court of Appeal held that the State Enactment prohibiting cross-dressing by men was unconstitutional as being against the fundamental liberties in Part II of the Constitution. In particular the Court of Appeal pointed out that the framers of the Constitution intended the term “Islam” in Article 3 to be given restrictive interpretation and give emphasis to Article 3(4), which provided that Article 3 did not derogate any other provision in the Constitution."

The Director-General of JAKIM[xliii] publicly criticised the Court of Appeal for interfering with the administration of lslamic law by the Shariah court in contravention of Article 121(1A) of the Federal Constitution. The Minister for Religious Affairs then issued a statement to the effect that the Government was planning to establish a Shariah Federal Court in order to prevent any further interference by the civil court.[xliv] This reignited the debate whether Malaysia has a dual legal system of civil law and Shariah law.

By far, the most divisive of these controversial cases have been the ban on the use of “Allah” by non-Muslims including the ruling that the weekly Herald Malaysia newspaper could not refer to God in that way in its Malay-language edition;[xlv] the seizure of an Indonesian publication that used “Allah” for Sunday school materials,[xlvi] and the seizure of 300 copies of the bible in Bahasa Melayu and Bahasa Iban that contained the word.[xlvii] The High Court in the Herald case held that the church had a constitutional right to use “Allah”,[xlviii] a decision that was set aside by the Court of Appeal.[xlix] Unfortunately, the constitutionality of the prohibition remains unclear as the Federal Court refused leave to appeal.[l]

The jurisdictional controversies referred to above remain unsettled as these circumscriptions on the legislative power of the State and the jurisdiction of the Shariah court have yet to be closely examined before the courts. It is possible that some of the actions taken by the religious authorities and the orders issued by the Shariah court in the above cases may have exceeded their power and jurisdiction.

The Shariah court

Unlike the High Court which is established by the Federal Constitution, the Shariah court is a creature of State law.[li] Article 74 of the Federal Constitution, read together with the State List,[lii] prescribes that Islamic law and Islamic matters — including the establishment of Shariah courts — fall under the jurisdiction of the State. According to the State List, legislative power of the State assembly to legislate on Islamic law and Malay customs is confined to 26 matters:

(a)  Succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;

(b)  Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State;

(c)  Malay customs;

(d)  Zakat, Fitrah and Baitulmal or similar Islamic religious revenue;

(e)  Mosques or any Islamic public places of worship;

(f)   Creation and punishment of offences by persons professing the religion of Islam against precepts of that religion; and

(g)  Constitution, organisation and procedure of the Shariah courts.

The State List stipulates that the Shariah court is to have jurisdiction only over persons professing the religion of Islam and in respect only of the above matters. It is also provided that the Shariah court shall not have any jurisdiction in respect of offences unless conferred by federal law.

Jurisdiction cannot be implied

It is a common misconception that once established, a Shariah court has ipso facto jurisdiction over all matters relating to Islamic law and Malay customs set out in the State List.

In a case where a widow sought a declaration that her deceased husband was a Buddhist during his lifetime and at the time of his death,[liii] the High Court held that the jurisdiction of the Shariah court cannot be derived by implication and that if State law did not confer jurisdiction to deal with a particular matter in the State List, the Shariah court would be precluded from dealing with that matter.[liv] As State law did not confer jurisdiction to determine the issue whether a person is a Muslim or not at the time of his death, the High Court was not precluded from hearing and determining that issue.[lv]
Similarly, in a dispute over wakaf land,[lvi] it was held that when there is a challenge to the jurisdiction of the High Court, the test was not whether the court had jurisdiction but whether jurisdiction had been conferred on the Shariah court. Only if such jurisdiction were conferred on the Shariah court would the High Court be precluded from considering the matter before it.[lvii]

However, there is dicta to the contrary in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor,[lviii] a case before the Federal Court, that the jurisdiction of the Shariah court to deal with the issue conversion out of Islam, although not expressly provided in State law, could be implied from the express provisions conferring jurisdiction on the issue of conversion into Islam.[lix] The Shariah court in that case had held that the deceased convert had not renounced the religion of Islam and therefore was a Muslim at the time of his death.

The rationale of the Federal Court appeared to be as follows:

“As in the case of conversion to Islam, certain requirements must be complied with under hukum syarak for a conversion out of Islam to be valid, which only the Shariah courts are the experts and appropriate to adjudicate. In short, it does seem inevitable that since matters on conversion to Islam come under the jurisdiction of the Shariah    courts, by implication conversion out of Islam should also fall under the jurisdiction of the same courts.”[lx]

The Federal Court was much persuaded by statements in the authorities[lxi] that the question of conversion out of Islam involves issues requiring substantial consideration of the Islamic law by relevant jurists qualified to do so and that therefore the only forum to qualified to do so is the Shariah court.[lxii]

It is submitted that although the fact that the determination of a Muslim’s conversion out of Islam may involve inquiry into the issue of renunciation of Islam under Islamic law, it did not follow that it would be “inevitable” that the Shariah court should have jurisdiction.[lxiii]

With the greatest respect, the Federal Court decision also appears to contradict two authorities cited in the judgment:

“... express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes: imposing tax; conferring or taking away legal rights; excepting from the operation of or altering clear principles of law; altering the jurisdiction of courts of law[lxiv]... ‘the general rule undoubtedly is, that the jurisdiction of the superior courts is not taken away, except by express words or necessary implication’.”[lxv]

Unfortunately, Soon Singh was not discussed, but by implication not followed, in Latifah Mat Zain,[lxvi] where the Federal Court clearly held that:

“What it means is that, the Legislature of a State, in making law to ‘constitute’ and ‘organise’ the Shariah courts shall also provide for the jurisdictions of such courts within the limits allowed by item 1 of the State List, for example, it is limited only to persons professing the religion of Islam. The use of the word ‘any’ between the words ‘in respect only of’ and ‘of the matters’ means that the State Legislature may choose one or some or all of the matters allowed therein to be included within the jurisdiction of the Shariah courts. It can never be that once the Shariah courts are established the courts are seized with jurisdiction over all the matters mentioned in item 1 automatically. It has to be provided for.”[lxvii]

The Shariah court an inferior court
Unlike the High Court, the Court of Appeal and the Federal Court, which are established by the Federal Constitution,[lxviii] the Shariah court has been equated to the Sessions Court and Magistrates’ Court which, in the Federal Constitution, are called inferior courts.[lxix]The Shariah courts are mere “State courts” and do not enjoy the same status and powers as the High Court.[lxx]
It follows that the High Court has supervisory powers over the Shariah court just as it has supervisory powers over other inferior tribunals, such as the Industrial Court.[lxxi]
Quite clearly, the Shariah court cannot be considered any greater than the inferior courts.[lxxii]

(a)  The Sessions Courts and Magistrates’ Courts are established by the Subordinate Courts Act 1948, which is a federal law, whereas the Shariah court is established by State law, Article 121(1A) notwithstanding;

(b)  In exercising its criminal jurisidiction,[lxxiii] the Magistrates’ Court can impose a sentence of an imprisonment up to 5 years, a maximum fine of RM10,000 and whipping up to twelve strokes, or a combination thereof, the so-called “5:10:12 Rule”; and

(c)  the Shariah court in its criminal jurisdiction is subject to limits imposed by Federal law[lxxiv] of a maximum sentence of three years imprisonment, maximum fine of RM5,000 and whipping up to six strokes, the so-called “3:5:6 Rule”.

It is therefore clear that under no circumstances can the Shariah court be considered equivalent to the High Court. It follows in principle that, where there is an issue of competing jurisdiction between the High Court and the Shariah court, the proceedings before the High Court must take precedence over the Shariah court.[lxxv]

No exclusive jurisdiction on Islamic law
It is also inaccurate to hold that the Shariah court has exclusive jurisdiction on all matters related to Islamic law. Given that the Shariah court is a creature of State law, it has no power of interpretation on any matter which is the province of the High Court and the subordinate courts, including issues on the interpretation of federal law and State law.[lxxvi]

In 2008, one Abdul Kahar[lxxvii] was charged in the the Shariah court for several offences for deviant teaching contrary to a State Enactment.[lxxviii] 

He challenged the constitutionality of the State Enactment on the grounds that the subject matter of the offences fell outside the term “precepts of Islam” in the State List circumscribing the legislative power of the State. 

The issue then arose as to whether the Shariah court had jurisdiction to enter upon the interpretation of the term “precepts of Islam” and thereby determine whether the provisions in the State Enactment creating the offences were in accordance with the provision of the Federal Constitution.[lxxix]

The Federal Court held that the Shariah court had no such power and that State law could not possibly confer such power because:

(a)  the ascertainment of Islamic law and other personal laws for purposes of federal law is a federal matter;[lxxx]

(b)  any question whether law made by a State is within the power of a state;[lxxxi] and

(c)  interpretation of the Federal Constitution is a matter for the High Court.[lxxxii]

In 2012, one Siti Hasnah applied to the High Court to declare her conversion to Islam when she was a year old to be invalid. The Court of Appeal held that the jurisdiction of the civil court was not ousted merely because the subject matter of a claim or complaint has an Islamic law element in it.[lxxxiii]

No overlapping jurisdiction
Another common misunderstanding is that the Shariah court is a parallel systemestablished under Article 121(1A) of the Federal Constitution.

Article 121 establishes the High Court, the Court of Appeal and the Federal Court and recognised such inferior courts as may be prescribed by law. Article 121(1A), however, merely excludes the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Shariah court.

Quite clearly, Article 121(1A) neither establishes nor confers jurisdiction on the Shariah court.[lxxxiv]  It is only when some jurisdiction is expressly conferred by State law on the Shariah court that Article 121(1A) would apply to exclude the jurisdiction of the High Court and the subordinate courts on that matter.

It has been stated above that the Shariah court can only have jurisdiction if expressly conferred by State law within the constraints of Islamic law matters mentioned in the State List.

In the absence of jurisdiction being conferred on the Shariah court in respect of any matter, such matter would fall within the jurisdiction of the High Court and the subordinate courts, unfettered by the operation of Article 121(1A).[lxxxv]

In any case, Article 121(1A) does not take away the jurisdiction of the High Court to interpret any State law enacted for the administration of Islamic law,[lxxxvi] such jurisdiction being outside the scope of the State law, although concerning Islamic law.

Article 121(1A) was introduced to prevent conflict of jurisdiction between the civil court and the Shariah court.[lxxxvii]

If federal laws and State laws are made in strict compliance with the Federal List and State List, there should not be a situation where both the civil court and the Shariah court have jurisdiction over the same matter or issue.[lxxxviii]

If an issue were to arise on whether State law infringes on the Federal List, Article 121(1A) cannot be an argument for ousting the jurisdiction of the civil court.[lxxxix] 

In such a situation the question to be asked is whether such state law is constitutional in the first place, which is a matter for the Federal Court to decide.[xc]

Although there may be distinct issues falling within the jurisdiction of the civil court and the Shariah court at the same time as in Latifah Mat Zain,[xci] it does not follow that there is an overlapping jurisdiction or assisting jurisidcition between the two nor are they considered double proceedings.[xcii]

Conclusion

Quite clearly, the idea of a “dual” legal system in Malaysia of civil law and Shariah law is misconceived. Shariah law is only applicable to Muslims and only as personal law, with provision for certain offences against the precepts of Islam. Nothing in the Federal Constitution suggests that the Shariah court is to compete with or be parallel to the civil court on the same subject matter, and this is supported by judicial authorities.

This issue is of vital importance to the people of Malaysia, with their multicultural, multi-ethnic and multi-religious history.

The nation called “Malaysia” has no existence outside of the Federal Constitution, which is the supreme law of the country. A united and functional Malaysia can only exist when legal issues are determined in accordance with principle, in well-reasoned judgments by the courts, with a willingness to grapple with difficult issues without glossing over or avoidance or oversimplification or a giving way to sentiment.

The authorities reviewed in this article have in the main avoided these dangers and provided guidance and a path to the future, although with some anomalies that need in due course to be resolved.

* About the authors:

Rosli Dahlan (rd@lh-ag.com) heads the Corporate & Commercial Disputes Practice Group at Lee Hishammuddin Allen & Gledhill who regularly appears at the High Court and appellate courts on public law issues.

Fawza Sabila Faudzi (fawza@lh-ag.com) graduated from the Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia, and is currently a pupil-in-chambers with the firm

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

           Article 3, Federal Constitution

[ii]           The Federated Malay States of Selangor, Pahang, Perak and Negeri Sembilan and the States of Perlis, Kedah, Kelantan, Terengganu and Johor

[iii]           Previously part of the Straits Settlements

[iv]           Clause 3, Federation of Malaya Agreement 1948 (“FMA 1948”)

[v]           Recital, FMA 1948

[vi]           Clause 5, FMA 1948

[vii]          Proviso, Clause 5, FMA 1948

[viii]          Clause 100, FMA 1948

[ix]           Hence, the Reid Commission

[x]           Joseph M Fernando, The Making of the Malayan Constitution (MBRAS, 2002) [Fernando] at 129

[xi]           Citing the request of the Rulers to retain religion as a State matter on the grounds that the provision would infringe their position as the head of the Muslim religion in their respective States; Fernando, supra n 10

[xii]          Fernando, supra n 10

[xiii]          Ibid, at 149

[xiv]          Ibid, at 161

[xv]          Ibid, at 162

[xvi]          Supra, n 10 at 130

[xvii]         Ibid, at 163

[xviii]         FM Ordinance No 55 of 1957

[xix]         Tunku Abdul Rahman (Hansard, 1 May 1957)

[xx]          Hence, the Cobbold Commission

[xxi]          Report of the Commission of Inquiry, North Borneo and Sarawak

[xxii]         Ibid, at 53-54; Or see



[xxiii]         Malaysia Act (Act No 26 of 1963)

[xxiv]         Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55

[xxv]         Ibid, at 56C

[xxvi]         Ibid, at 56C-D

[xxvii]        Ibid, at 56E

[xxviii]        Supra, n 24 at 56A-C

[xxix]         Ibid, at 57E-F

[xxx]         Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147

[xxxi]         Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2013] 5 MLJ 552; Ketua Polis Negara v Indira Gandhi a/p Mutho [2015] 2 MLJ 149 (CA)

[xxxii]        Viran Nagapan v Deepa Subramaniam [2015] 3 CLJ 537 (CA)

[xxxiii]        Berjaya Books Sdn Bhd v Jabatan Agama Islam Wilayah Persekutuan Wilayah Persekutuan & Ors [2014] 1 MLJ 138

[xxxiv]        Jabatan Agama Islam Wilayah Persekutuan (Department of Federal Territory Islamic Affairs)

[xxxv]        By virtue of s 13 of the Syariah Criminal Offences (Federal Territories) Act 1997

[xxxvi]        Supra, n 33

[xxxvii]       Jabatan Agama Islam Wilayah Persekutuan & Ors v Berjaya Books Sdn Bhd & Ors [2015] 1 AMR 739

[xxxviii]       Ibid, at 761(53)

[xxxix]        Jabatan Hal Ehwal Agama Islam Negeri Sembilan (Department of Negeri Sembilan Islamic Affairs)

[xl]           Syariah Criminal (Negeri Sembilan) Enactment 1992, s 66

[xli]          Muhamad Juzaili Mohd Khamis & Anor v State Government of Negeri Sembilan & Ors [2015] 1 AMR 673; [2015] 1 CLJ 954

[xlii]          Decided by Mohd Hishamudin Yunus, Aziah Ali and Lim Yee Lan JJCA

[xliii]          Jabatan Kemajuan Islam Malaysia (Department of Islamic Development Malaysia)

[xliv]         ; 

[xlv]          Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Ors [2014] 4 MLJ 765

[xlvi]         Jerry WA Dusing @ Jerry W Patel & Anor v Menteri Keselamatan Dalam Negeri Malaysia & Anor [2015] 1 MLJ 675

[xlvii]         

[xlviii]         Supra, n 45 at 782(12)

[xlix]         Ibid, at 782(18)

[l]            Supra, n 45

[li]           Article 74 (2) of the Federal Constitution

[lii]           Read with the Ninth Schedule of the Federal Constitution, Item 1 of List II (State List)

[liii]           Ng Wan Chan v Majlis Ugama Islam Wilayah Persekutuan & Anor (No 2) [1991] 3 MLJ 487

[liv]          Ibid, at 489C-F

[lv]           Ibid, at 490D

[lvi]          Shaik Zolkaffily bin Shaik Natar & Ors v Majlis Agama Islam Pulau Pinang dan Seberang Perai [1997] 3 MLJ 281 (see also Barkath Ali bin Abu Backer v Anwar Kabir bin Abu Backer [1997] 4 MLJ 389)

[lvii]          Shaik Zolkaffily; supra, n 56 at 293F

[lviii]          [1999] 1 MLJ 489

[lix]          Ibid, at 502A

[lx]           Ibid, at 502G

[lxi]          Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1; Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan, Kuala Lumpur [1998] 1 MLJ 681

[lxii]          Dalip Kaur; supra, n 61 at 10A

[lxiii]          Supra, n 58 at 502G

[lxiv]         Ibid, at 502B

[lxv]          Ibid, at 502C

[lxvi]         [2007] 5 MLJ 101

[lxvii]         Ibid, at 116(43)

[lxviii]         Article 121, Federal Constitution

[lxix]         Latifah Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 at 114G

[lxx]          Dato’ Kadar Shah Tun Sulaiman v Datin Fauziah Haron [2008] 7 MLJ 779 at 785E

[lxxi]         Ibid, at 785F

[lxxii]         Article 121(1), Federal Constitution

[lxxiii]         Subordinate Courts Act 1948; s 87

[lxxiv]        Syariah Court (Criminal Jurisdiction) Act 1965, Act No. 355 (Rev – 1988); s 2

[lxxv]         Supra, n 70; para 14 at 785

[lxxvi]        Zaina Abidin bin Hamid @ S Maniam & Ors v Kerajaan Malaysia & Ors [2009] 6 MLJ 863

[lxxvii]        Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617

[lxxviii]        Charged with five offences under various provisions of the Syariah Criminal Offences (Selangor) Enactment No 9 of 1995

[lxxix]        Supra, n 75 at 622H-I

[lxxx]         Ibid, at 623C

[lxxxi]        Ibid, at 623G

[lxxxii]        Ibid, at 622

[lxxxiii]        Siti Hasnah Vangarama Abdullah v Tun Dr Mahathir Mohamad & Ors [2012] 7 CLJ 845 at 854(14)

[lxxxiv]       Shaik Zolkaffily supra, n 56 at 293F

[lxxxv]        Ibid

[lxxxvi]       Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1992] 1 MLJ 1 at 7F

[lxxxvii]       Mohamed Habibullah bin Mahmood v Faridah Bte Dato Talib [1992] 2 MLJ 793 at 804A (see also Professor Ahmad Ibrahim, “The Amendment of art. 121 of the Federal Constitution: Its effect on the Administration of Islamic Law” [1989] 2 MLJ xvii; cited in Latifah Mat Zin, supra, n 69 at 117I

[lxxxviii]       Latifah Mat Zin; supra, n 69 at 118C-E

[lxxxix]       Ibid, at 118F

[xc]          Ibid, at 118G; Article 128 of the Federal Constitution

[xci]          Supra, n 88

[xcii]         Ismail bin Mohamad v Wan Khairani bt Wan Mahmood and another appeal [2011] 1 MLJ 743 at 750G

- See more at: http://m.themalaymailonline.com/what-you-think/article/the-position-of-the-shariah-court-in-the-malaysian-legal-system-rosli-dahla#sthash.ro51wpqC.dpuf

My comments : A very careful argument making it clear that the Federal Constitution is the supreme law of the land.  

Plus clear provisions that the shariah court is a subordinate court only (with same ranking as majistrate and sessions courts) and with specific areas of jurisdiction (26 areas of jurisdiction only).

The High Court, the Court of Appeal and Federal Courts are way above the shariah courts.

Plus clear udersanding that shariah courts are State courts.They are not empowered at the Federal level ie at the national level.

Whatever a shariah court decides is only binding inside the State. It cannot be binding outside the state.

(Hence the argument that the arrest of Kassim Ahmad is illegal. He was arrested in Kedah by the local religious authority for something he said in Putrajaya.) 

I think the religious guys are aware of this too. The PAS guys are pushing for an amendment to the Federal Constitution whereby the punishment meted out by the shariah courts is extended beyond the 3-5-6 limitation (maximum three years jail, RM5000 fine and six strokes of the rotan).   They want to include the chop hands, stone to death etc. Otherwise their hudud becomes quite meaningless.

Here I would like to draw the attention of the reader (and the Federal Court, the Higher Courts etc) to the following in the Quran:

Surah 24:3   The adulterer (zaani) shall not marry save an adulteress (zaaniyatu) or an idolatress (mushrikat) , and the adulteress (zaaniyatu) none shall marry save an adulterer (zaani) or an idolater (mushrikun). All that is forbidden unto believers. (Pickthall)

The queston is why is this not part of the hudud or shariah laws?

The whole of Surah 24 is established as a Fard or compulsory surah. Please see the first verse of this Surah ie 24:1 

24:1    A sura that we have sent down, and we have decreed as law. We have revealed in it clear revelations, that you may take heed.

So it is decreed that  "The adulterer (zaani) shall not marry save an adulteress (zaaniyatu) or an idolatress (mushrikat) , and the adulteress (zaaniyatu) none shall marry save an adulterer (zaani) or an idolater (mushrikun). All that is forbidden unto believers".

But the religious people say that the adulterer/ress should be killed. Stoned to death.  This punishment is NOT in the Quran. (This punishment can be found in the Old Testament of the Bible). If you kill them, how are you going to implement Surah 24:3 above?


"The adulterer (zaani) shall not marry save an adulteress (zaaniyatu) or an idolatress (mushrikat) , and the adulteress (zaaniyatu) none shall marry save an adulterer (zaani) or an idolater (mushrikun). All that is forbidden unto believers "


If they say this decree need not be imposed, on whose authority do they say so? 

Because just two verses prior, Surah 24:1 says the whole of Surah 24 is decreed as law. 

And if you seek to implement Surah 24:3 just how exactly do you go about enforcing it?

How do you find an adulterer to marry an adulteress and vice versa? How can you force them to marry? What if they do not wish to get married? If you force them to marry,  they can still divorce. Then what happens?

In the shariah court, all the adulterer/ress must be Muslim. How do you (or why do you) wish to force a Muslim adulterer/adulteress to marry a mushrik (a polytheist or pagan)? 

Does the shariah allow a Muslim adulterer to marry a mushrik? I dont think so.

So how do you handle this issue. (I think I have the solution but then again I cannot just speak my mind. We live among psychos.) 

So to the Federal Court, please do not assume that the religious people know everything.  If they insist on shariah, then they do not follow the Quran to the letter.

(Because to my knowledge no Shariah Court in the world has implemented Surah 24:3 above. Here let me repeat it :


"The adulterer (zaani) shall not marry save an adulteress (zaaniyatu) or an idolatress (mushrikat) , and the adulteress (zaaniyatu) none shall marry save an adulterer (zaani) or an idolater (mushrikun). All that is forbidden unto believers "


So how can you kill (stone to death) the adulterer and adulteress when the Quran says adulterer/ress must marry adulteress/adulterers? People who have been stoned to death cannot marry anyone.

There is more to this than what the religious people know.   

So please do not take everything the religious people say as 'hukum'.