Malaysian Bar: Supremacy of Federal Constitution and Syariah Court Enactments (2016) June 8, 2016

Malaysian Bar Press Release | Preserve, Respect and Uphold the Supremacy of the Federal Constitution
8 June 2016

The Malaysian Bar is extremely concerned over recent attempts by certain parties to ignore or reject entrenched principles in our supreme law, namely the Federal Constitution.[1]

It was reported that Minister in the Prime Minister’s Department, Dato’ Seri Jamil Khir Baharom (“Minister”) said that “the laws to ban unilateral conversion contravenes [sic] Article 12(4) of the Federal Constitution which states the religion of a minor under the age of 18 can be determined by their respective mother or father”.[2]

The Minister’s remarks are erroneous.  Article 12(4) of the Federal Constitution provides: “For the purposes of Clause (3), the religion of a person under the age of eighteen years shall be decided by his parent or guardian” (emphasis added).[3]  Article 12(4) must be read with the interpretation provisions in the Federal Constitution — Article 160 and the Eleventh Schedule — that provide that all words in the singular also include the plural. Hence, the religion of children under the age of 18 is to be decided by both parents, where both parents are alive.

The Minister apparently relied on the Federal Court’s decision in the case of Subashini Rajasingam v Saravanan Thangathoray [2008] 2 CLJ 1, but regrettably his understanding of the case is flawed. There was no binding judicial pronouncement in that case on the meaning of the word “parent” in Article 12(4) of the Federal Constitution.[4]  It is pertinent that the Federal Court recently granted leave to appeal (by consent of all parties) in the Indira Gandhi case on the issue of whether both parents (if both are still surviving) of a child of a civil marriage must consent before a certificate of conversion to Islam can be issued in respect of that child.

As justification for his stand on unilateral conversion of minors, the Minister also referred to Article 3(1) of the Federal Constitution, which provides: “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.”  In doing so, however, he appears to have ignored Article 3(4) of the Federal Constitution, which states: “Nothing in this Article derogates from any other provision of this Constitution.”

Thus, Article 3(1) must not be construed in isolation or in absolute terms. It is expressly made subject to other parts of the Federal Constitution, including Part II on fundamental liberties.

It was also reported that on 26 May 2016 the Member of Parliament for Marang, Dato’ Seri Haji Abdul Hadi Awang, applied for leave to introduce a Private Member’s Bill called the Syariah Courts (Criminal Jurisdiction) (Amendment) Bill 2016.

The Bill, which seeks to amend the Syariah Court (Criminal Jurisdiction) Act 1965 (“Act 355”), was reportedly tabled for its first reading but was ultimately deferred to the next session of Parliament.

There are two proposed amendments in the Bill.  First, a substitution of the existing Section 2 with a new Section 2 “to clarify that the Syariah Court’s criminal jurisdiction over a person professing to the faith is not limited to the violation of the teachings of the religion only but also includes any violations connected to all matters mentioned in item 1 of the State’s list as contained in the Ninth Schedule of the Federal Constitution.”[5]

The new Section 2 of Act 355 appears to widen the scope of the criminal jurisdiction of Syariah Courts beyond “offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law”[6], which is in the existing Section 2.  It is uncertain whether this is intended to be the platform to confer jurisdiction on Syariah Courts in respect of State enactments, such as the Syariah Criminal Code (II) (1993) 2015 Enactment (Kelantan), which prescribes hudud offences — the class of crimes prescribed under Syariah law — in its Section 5. The proposed amended Section 2, however, does not abide by the irrefutable legal principle that legislative amendments concerning criminal offences must be clear and precise, and must comply with constitutional limitations on the jurisdiction of the courts.[7]

The second amendment in the Bill is to introduce a new Section 2A into Act 355 “with the objective of increasing the Syariah Court’s power to pass sentences.”[8]  The proposed Section 2A removes the restriction on punishment for offences against the precepts of Islam that the Syariah Courts can currently impose: imprisonment not exceeding a term of three years, a fine not exceeding five thousand ringgit, whipping not exceeding six strokes, or any combination of these punishments (which has come to be known as the “3-6-5 provisions”). No sentence of death can be imposed under the new Section 2A, but the amendment would appear to confer Syariah Courts with unlimited power to impose all other hudud punishments.

In this regard, offences such as zina (adultery), qazaf (false accusation of committing zina), syrub (alcohol consumption) and irtidad or riddah (apostasy) are all defined as hudud offences in Section 5 of the Syariah Criminal Code (II) (1993) 2015 Enactment (Kelantan), and carry the punishment of whipping ranging from 40 to 100 lashes.  It is therefore rather disingenuous for some quarters to suggest that the Bill does not touch upon hudud offences in any manner.

Moreover, Article 8 of the Federal Constitution requires that all legislative action satisfy the test of proportionality.[9]  As such, a proposed statutory provision must be objectively fair, and proportionate to the object sought to be achieved by the Legislature. Legislative action that leads to arbitrariness or allows for excessive measures would fail this test of proportionality.[10]  It is improbable that the open-ended and unrestricted (save for the death penalty) sentencing power that Section 2A purports to confer on Syariah Courts will meet the proportionality requirement, thus rendering the constitutionality of Section 2A questionable.

The Malaysian Bar strongly urges all parties to adhere to and uphold the Federal Constitution, and to refrain from provocative rhetoric. Let us not allow unfounded statements or dubious actions divide us, and distract or divert us from focusing on the challenges to the rule of law that remain extant.

Steven Thiru
President
Malaysian Bar
8 June 2016

 


[1] Article 4(1) of the Federal Constitution.

[2] “Jamil Khir insists unilateral conversion constitutional”, Malay Mail Online, 23 May 2016.

[3] Article 12(3) of the Federal Constitution states: “ No person shall be required to receive instruction  in or to take part in any ceremony or act of worship of a religion other than  his own…”

[4] The discussion by the Federal Court on the meaning of the word “parent” in Article 12(4) was obiter dicta — ie other statements not required for the decision in the matter — and does not constitute statements binding in law.

[5] Explanatory statement on Clause 2, which seeks to amend section 2 of Act 355.

[6] As substituted, Section 2 of Act 355 would read: “The Syariah Courts shall have jurisdiction over person professing the religion of Islam and in respect of offences relating to any matter enumerated in item 1 of the State List out in the Ninth Schedule of the Federal Constitution.”

[7] List I (Item 4) and List II (Item 1), Ninth Schedule of the Federal Constitution.

[8] The explanatory statement (para 4) to the Bill and the new Section 2A reads: “In exercising the criminal jurisdiction under section 2 the Syariah Court may pass any sentence allowed by Islamic law in respect of the offence mentioned in the said section other than the sentence of death.”

[9] PP v Azmi Sharom [2015] 8 CLJ 921 at p. 942.

[10] Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301.

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