Freedom of Religion after the Catholic Herald Court Judgments. Part 1/2

 

Part 1/2: Backdoor Islamization of Malaysian Laws – State Islamic Enactments Silently Rewrite the Federal Constitution via Illegitimate Use of the Penal Code.

Related Post: Part 2/2: Implications for Freedom of Religion arising from the Catholic Herald Court Judgments

The recent judgments by the Court of Appeal and the Federal Court failed to clarify and delimit the bounds of authority of the State Islamic Authorities in relation to non-Muslims. The result is an ongoing process of silent rewriting of the Federal Constitution that violates the fundamental liberties of all citizens enshrined in the Federal Constitution. The failure of the higher Courts to address and arrest the backdoor Islamization of the legal system can only result in ascendency and final supremacy of Syariah law for the country.

Read the attached document “Freedom of Religion after the Catholic Herald Judgments” for a careful and insightful analysis of these disturbing developments:

pdfFreedom of Religion after the Catholic Herald

 

Highlights from Document Freedom of Religion after the Catholic Herald Court Judgments

Section 14 states that an authorized officer making an investigation under section 12 may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined. The person being questioned shall be bound to answer all questions relating to the case put to him by the authorized officer provided that he may refuse to answer questions which would have a tendency to expose him to a criminal charge or penalty or forfeiture. This provision means that persons called as witnesses are bound to answer all questions. Section 11 also states that all offences and cases under this Enactment shall be deemed to be seizable offences and seizable cases for the purposes of the Criminal Procedure Code.

The question that arises is whether the State can designate authorities from Islamic religious departments to investigate the commission of any offence by non-Muslims pertaining to the Enactment and give such authorities power to arrest without warrant any person suspected of having committed any such offence? Does the State have the authority to give these religious officers the power to compel non-Muslim witnesses to answer questions?

Note that in Section 2 of the Enactment defines an ‘authorized officer’ as a public officer. Presumably, the Enactment claims that JAIS officers being public servants are empowered to enforce laws, at least in matters defined in the State List.

Para 1 of the Ninth Schedule reads;
Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, etc, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law ; the control of propagating doctrines and beliefs among persons professing the religion of Islam ; the determination of matters of Islamic law and doctrine and Malay custom.

Para 1 of List II is often interpreted to deal with the State’s power to enact Islamic law and also to limit the power of Syariah courts over non-Muslims. Under Para 1, the state’s jurisdiction is over;
1. Islamic law which includes offences by Muslims except in areas covered under the Federal List,
2. Syariah courts which will not have jurisdiction over non-Muslims and its jurisdiction in respect of offences are restricted to matters within Para 1 except where allowed by Federal Law,
3. Control of propagating doctrines and beliefs among persons professing the religion of Islam,
4. Determination of matters of Islamic law and doctrine and Malay custom.

The State’s power to enact laws dealing with the matters above lies with the State Legislative Assembly which also comprises non-Muslim representatives but the implementation and enforcement of these laws are left to the various Islamic departments in the State. The anomaly is that the enforcement of the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment is over non-Muslims unlike the other provisions in para 1 which envisages implementation and enforcement by Islamic authorities over Muslims. The Selangor Government Gazette shows that the interpretation taken by the State of Selangor is that all matters mentioned in para 1 of List II are within the powers of the Islamic enforcement authorities. However Professor Emeritus Shad Saleem Faruqi states that since the ‘Constitution specifically asserts that Syariah ourts have jurisdiction only over persons profession the religion of Islam, it is arguable therefore that Syariah authorities likewise have jurisdiction only over Muslims’. He states that State laws under article 11(4) are addressed to non-Muslims, and the enactments pursueant to article 11(4) are civil laws that are only enforceable by civil authorities in civil courts.

It is against the basic structure of the Federal Constitution for Islamic authorities to be given power to arrest non-Muslims and to seize any material suspected to have been used for propagation. The Enactment itself appears not to have envisaged this when it was first passed in 1988. The powers given to authorized officers, to investigate, arrest without warrant, seize, require an offender to appear before such officer, require such offender to answer questions and to report such failure to appear to a Magistrate are powers commonly granted to the police. This is further borne out by section 11 which also states that all offences and cases under this Enactment shall be deemed to be seizable offences and seizable cases for the purposes of the Criminal Procedure Code. The expansion to the commonly accepted definition of ‘authorized officer’ was gazetted only in 1999. Furthermore attempts to grant religious enforcement authorities powers under the Criminal Procedure Code are beyond the scope of the States as this can only be done by Parliament. The Code clearly operates within the ‘secular’ legal system and religious enforcement authorities should not be part of this Code especially when there are Syariah Criminal Procedure Codes within which these authorities operate. Therefore the Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 Selangor should only be enforced by the police and religious enforcement officers may be called as expert witnesses to testify in the civil courts.

The jurisdiction given to Islamic enforcement officers over non-Muslims is not only in the NonIslamic Religions (Control of Propagation Amongst Muslims) Enactment 1988 Selangor but also under section 42 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003. This section states that every member, officer and servant of the Majlis shall be deemed to be a public servant within the meaning of the Penal Code. The definition of public servant is in section 21 of the Penal Code. Section 21 (g) of the Penal Code refers to;
(g) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(h) every officer of Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience. There is nothing in the Penal Code to lead to the assumption that Islamic authorities fall within the definition of ‘public servant’.

Furthermore the enforcement of offences under the Penal Code is carried out by primarily by the police as stipulated in the Criminal Procedure Code (CPC). There are references in the CPC to ‘Penghulu’ and ‘other person authorized to make an arrest’ but it appears that this does not cover the Islamic authorities for two reasons; The first is that there exists a separate Syariah Criminal Code for the various States to administer offences under Syariah law. The second reason is that the CPC states that ‘Nothing in this Code shall be construed as derogating from the powers or jurisdiction of the High Court’ which clearly shows the ‘secular’ and ‘civil’ nature of this statute.

The Islamic authorities in Selangor have been included within the definition of ‘public officer’ in the Penal Code although the Code is a ‘secular’ statute enacted by Parliament. It is unlikely that the intention in Penal Code or Criminal Procedure Code was to empower Islamic enforcement authorities to exert power over Muslims or non-Muslims. Instead the State has exceeded its authority by defining its religious enforcement officers as ‘public officers’ or ‘public servants’ in Federal statutes. It is questionable whether even Parliament may amend these laws to include Islamic enforcement officers within the definition of public officer and clearly state laws cannot exceed the authority of the state and expand the definition of public servant or public officer in Federal legislation.

It is not clear why the Administration of the Religion of Islam (State of Selangor) Enactment 2003 has extended the definition of public servant to encapsulate the Penal Code. Perhaps it is an attempt to have power over Chapter XV of the Penal Code, offences relating to religion or it may be part of a bigger plan to align Syariah and the common law in preparation for the harmonization of both laws conducted by the Attorney General’s chambers…

While it may appear far-fetched to think that the Islamic authorities have power to enact laws and to arrest non-Muslims, or that Parliament would enact hudud through the Penal Code, it should be noted that there is a silent re-writing of the Constitution taking place without taking into account historical documents on the interpretations of articles 3 and 11 of the Federal Constitution or the discussions between the Malayan government and North Borneo and Sarawak on freedom of religion

Related Post Part 2/2: Implications for Freedom of Religion arising from the Catholic Herald Court Judgments

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