Is ‘supremacy concept’ relevant to Malaysia’s dual system of law?

 

From Hamid Sultan Abu Backer

The concept of the “supremacy” of the constitution is used in Commonwealth countries to identify a rule of law which is empowered to enact and administer the country as per the oath of office of its constitutional functionaries.

The concept per se is not used by jurists and authors to discuss the status of the common law or the personal laws of citizens and its hierarchy among other laws of the state.

Unlike other Commonwealth countries, our Federal Constitution provides for a dual system of law (federal and shariah) to operate without conflict or overlap.

It has a unique oath of office for constitutional functionaries in contrast to other Commonwealth countries, which is to make sure the federal and state legislatures do not conflict by enacting laws in breach of the constitutional framework.

This oath of office is superior in nature and is similar to that of the oath taken by the president of the United States.

A proper understanding of the oath and its jurisprudence is essential to protect fundamental rights as well as the constitutional guarantees set out in the constitution, and it is also the tool to guarantee social justice to the public.

The oath of office of the US president reads as follows:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

As a condition precedent, the oath of office of the Malaysian legislature per se requires legislators not to breach the constitutional and social justice guarantees when legislating, as well as to ensure the proportionality principle developed by the common law courts as adopted in Malaysia.

This is not the position in England or India as per their legislature’s oath of office.

In my view, the difference in the oath of office in England and India and ours is akin to the distinction between marble and pumpkin, but our legal pundits have not picked it up or advocated it in full force to sustain the rule of law and social justice at the apex court level for the court to take judicial notice of the distinctions.

The oath gives the court absolute power to ensure the laws comply with the constitutional framework, and the legislatures do not breach the oath in enacting laws in breach of the constitution as well as proportionality and social justice principles.

That is not the position in England or India. The absolute power under our constitution originates from the oath of office.

The rulers (the fourth pillar) are empowered to ensure the rule of law is not compromised by any of the other pillars of the constitution, namely the executive, legislature, and judiciary (the three pillars of the constitution). Neither the king of England nor the president of India has any such obligation.

It is my considered view that Malaysian jurists and its legal industry do not have sufficient knowledge in the oath of office jurisprudence to seek a declaration or judicial review of any legislation or constitutional amendment on grounds of illegality for breach of oath of office, and in appropriate circumstance lodge a petition to the fourth pillar to sustain the rule of law.

The reason for this shortcoming is the result of book writers, jurists and the legal industry “copy-pasting” English or Indian jurisprudence without giving critical thought to the oath of office, which had been admirably planted by our founding fathers to preserve, protect and defend the constitutional rights of Malaysians.

The Malaysian chapter of social justice and constitutional oath jurisprudence has been captured in my booklet (available for free) for the benefit of the Malaysian public, which also sets out the test to check the arbitrariness of the legislature and other decision makers by incorporating the test set out by Raja Azlan Shah (then Raja Azlah Shah CJ) in the case of Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd (1979).

England is a country which had practised the concept of parliamentary supremacy (sovereignty) for nearly a thousand years. This concept gives absolute power to parliament to dictate the law of the land.

Even though the king of England and large members of the public inclusive of parliamentarians were and are of the Christian faith, and public function ceremonies in the presence of the king may have the touch of their faith, the law of England was not declared as one related to Christian faith.

It is my observation that the common law is in most aspects harmonious with or not objectionable to the major religions and practices of the world.

The law of England was always the common law as found in the judicial decisions, and any law dictated by parliament was not based on giving primary or secondary importance to the Christian faith.

England had also colonised many countries with people of different faiths, but it had never obstructed the religion of other faiths or laws or customary practice to continue, except that it has kept exclusive control of criminal law within its dominance and disregarded the religious criminal law or penal practices of others.

The law was only meant to administrate the country as per the rule of law and was not to thrust the dominance of religious supremacy on to the general public.

In crude terms, the concept can be summarised so as to say: “Allegiance to the king and obey the laws of the land as per judicial decisions, customary practices and fiat of parliament.”

The source of common law and practice has its roots in the law of the Roman Empire and also may encompass many other laws of other religions as well as practices. For example, offer and acceptance in contract has similarities to Islamic law on contract, including the law of marriage.

The learning of law from the inns of courts where barristers qualify to practise law has similarities to the madrasah concept of Muslims or the Gurukulam concept of ancient India, for example on the point of commonality.

In relation to Islam, it can easily be identified by reading Medjelle (Civil Code of Ottoman Empire) and comparing it with the common law. In essence, the common law harmonises many other laws in practice and that may include laws derived from other religions or practices.

India is a country which has accepted its constitution as supreme with no allegiance of supremacy of any faith or religion even though a substantial part of its population practises the Hindu faith. Instead, it recognises that all religions as well as religious personal laws (other than criminal laws) can be practised in a peaceful manner.

The position in Malaysia is quite different.

The Malay rulers have been magnanimous in formulating a constitution that ensures the personal family laws of the Muslims are absolutely protected, but the Muslim penal laws are restricted and must harmonise with the constitution and federal laws. The strictures, if any, had been carefully thought out and deliberated to stop any form of overlap in criminal jurisdiction.

Within this framework, Muslim laws attain their supremacy status in Malaysia and the shariah courts are the supreme arbiters for Muslim family law with some minimum jurisdiction in relation to criminal law which is applicable to all born Muslims.

However, when it relates to converts and the disputes therein, the civil or shariah court’s jurisdiction may in some instances become a moot point for debate and judicial decisions.

These disputes can be easily harmonised with the creation of special courts to deal with conflict of law cases. - FMT

Hamid Sultan Abu Backer is a retired judge of the Court of Appeal, and a professor of arbitration and dispute resolution at MAHSA University. He is also an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.