Congratulations To The Federal Court On The Syariah Ruling. Why Not Just Declare The Entire Syariah Criminal Enactments Unconstitutional?
Well it looks like there is still hope for Malaysia. The Federal Court has declared part of the Selangor Syariah Criminal Enactment "unconstitutional". That particular Syariah Enactment is now null and void. My comments in blue.
Here is the Malay Mail:
KL Feb 25 — Federal Court's nine-judge panel today unanimously declared
Selangor state's "unnatural sex" Shariah offence invalid
against Fed Const, such offences fall under Parliament and not state powers
Chief Justice Tun Tengku Maimun Tuan Mat said Fed Court granted order
man challenged constitutionality, validity Sect 28 Shariah Criminal Offences (S'gor) Enactment 1995
Section 28 “sexual intercourse against order of nature
maximum fine RM5,000 or 3-year jail term or maximum six strokes or combination
Federal Court declared Section 28 invalid
S'gor state legislature has no power to make laws and is therefore null and void
nine-member panel who agreed with judgment include
- President of the Court of Appeal Tan Sri Rohana Yusuf
- Chief Judge of Malaya Tan Sri Azahar Mohamed
- Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim
- Federal Court judges Datuk Seri Zawawi Salleh
- Datuk Nallini Pathmanathan
- Datuk Vernon Ong
- Datuk Zabariah Mohd Yusof
- Datuk Seri Hasnah Mohammed Hashim
In Constitution’s Ninth Schedule, List I states federal government laws
List II, State List, states state laws
can Selangor make a law if matter comes under Parliament’s power
What the chief justice said
Under State List, states make laws on offences against religion
except in regard to matters included in Federal List
excludes state from making laws falling under federal jurisdiction
lawyer Datuk Malik Imtiaz Sarwar said state could not make Section 28 into law
as Section 377, 377A of Penal Code already governs the same
Tg Maimun said S'gor failed to answer how Sect 28 valid despite preclusion clause
undisputed that sodomy against precepts of Islam
but not enough to argue Sect 28 valid simply because against precepts of Islam
bigger question was if state legislature had powers to enact Section 28
state list states “except matters included in Federal List”
and not “except in regard to matters included in the Federal Law”
judge explained state legislatures unable to make law on matters that fall within Parliament’s jurisdiction, even if there is no such federal law yet.
would be a case-by-case basis whether matter comes under federal jurisdiction
“It remains to be tested in every given case where the validity of a state law is questioned, for the courts to first ascertain whether a law in question is within the jurisdiction of Parliament to enact and not necessarily whether there is already a federal law in existence such that the state-promulgated law is displaced,” the judge said.
With no challenge by any of the parties in the case over Parliament’s powers to make the Penal Code provisions that cover the same matter as Section 28, the judge said the Federal Court must accept that Parliament had competently enacted the Penal Code provisions in line with the Federal Constitution.
After going through judgments by the Federal Court in three other relevant court cases, Justice Tengku Maimun said that the nine-member panel is of the view that these judgments show that the issue is not about the “co-existence” of federal and state laws, but instead more about the independent application of the two streams of laws — civil and Shariah laws — within their respective jurisdictions.
Looking through other provisions in the Federal Constitution including Article 3, Article 74(3), the chief justice also looked at the Reid Commission Report 1957 which she cited as showing that the main powers to make law in Malaysia is with the federal government via Parliament, while states are to only have limited powers to make laws on specific matters.
“Unlike countries such as the United States where the primary power of legislation lies with the individual states with residual powers in the Federation, the terms of our Federal Constitution and the history of its founding make it abundantly clear that the primary legislative powers of the Federation shall lie ultimately with Parliament save and except for specific matters over which the states shall have legislative powers,” she explained.
(OSTB : Yang Ariff I have studied something about the United States Constitution. Although American States can make laws but their laws cannot contradict the US Federal Constituion, The US Federal Constitutionn supersedes all State laws, past, present and future. This has long been established by the US Supreme Court. It is good that we are - at last- headed in the same direction.)
She also cited the Federal Constitution’s Article 75 and Article 77 as showing that Parliament has the primary legislative power or power to make laws, while state legislatures have residual powers to make laws.
The judge listed out the Federal List’s Items 3 and 4 which gave the power to Parliament to make criminal law and to create offences on matters listed within the Federal List, while noting that the State List does allow the creation of offences against the “precepts of Islam” but that these powers were limited by the “preclusion clause” and only on matters listed in the State List. She also noted that the entire State List does not carry any of the same matters listed in the Federal List’s Items 3 and 4.
The judge also said the argument by the Selangor government and Mais on Section 28 allegedly being worded more broadly than the Penal Code provisions was “wholly immaterial” or irrelevant, pointing out that what matters in this case is that Section 28 covers a matter which falls under the Federal List.
The judge then concluded that it could be put forward that when Parliament and the state legislature make laws on the same subject matter of criminal law, the two laws cannot co-exist even if the offence is said to be against the precepts of Islam, due to the “preclusion clause” in Item 1 of the State List.
“Given the above, the natural consequence is that the subject-matter upon which section 28 of the 1995 Enactment was made falls within the preclusion clause of Item 1 of the State List.
“As such, it is our view that the said section was enacted in contravention of item 1 of the State List which stipulates that the state legislatures have no power to make law ‘in regard to matters included in the Federal List’.
To that extent, section 28 of the 1995 Enactment is inconsistent with the Federal Constitution and is therefore void,” the judge said when noting that Section 28 in the Selangor state law had went against the Federal Constitution.
To avoid any doubt, the chief justice noted that the range of offences against the precepts of Islam that can be enacted by state legislatures in Malaysia is “wide” as the Federal Court had in another case previously decided that the “precepts of Islam” is wide and not limited to the five pillars of Islam.
But she pointed out the wide range of such offences against precepts of Islam that state legislatures can make law on is subjected to limits under Malaysia’s Federal Constitution: “Thus, the range of offences that may be enacted are wide. Having said that, the power to enact such range of offences is subject to a constitutional limit.”
What the chief judge of Malaya said
Justice Azahar cited two previous Federal Court judgments which he said showed the phrase “precepts of Islam” as being wide to include “every single rule, conduct, principle, commandment and teaching of Islam prescribed in the Shariah, including Islamic criminal law”.
He considered the wide meaning of “precepts of Islam” and cited two expert opinions by Professor Emeritus Tan Sri Mohd Kamal Hassan and Professor Emeritus Datuk Paduka Mahmood Zuhdi Abd Majid.
The judge said Section 28 which relates to unnatural sex including “liwat” or sodomy is undeniably an offence against the precepts of Islam.
But he also said whether Section 28 was validly enacted by the Selangor state legislature within the limits of its powers under the Federal Constitution was a question that must be dealt with separately.
He noted that this is the first time that the Federal Court has had to directly address the point of whether Section 28 cannot be valid due to the “preclusion clause” in the Federal Constitution and as it had intruded into an area that belongs to Parliament.
He concluded that the “preclusion clause” was worded in a “compellingly clear and unequivocal” manner, adding that he had no doubt that it meant that the state legislature’s powers to make laws on offences against the precepts of Islam is regulated by the phrase “except in regard to matters included in the Federal List”.
“The preclusion clause functions as a limitation imposed by the Federal Constitution on the state legislatures to make laws on Islamic criminal law,” he said.
Justice Azahar also pointed out that it is important to note that the Federal Constitution’s State List itself expressly recognises that certain areas of Islamic criminal law are part of Parliament’s jurisdiction, and that as a result, any matter falling under Parliament’s jurisdiction would not be something that the state legislature can make laws on.
(OSTB : We thank the Judge for saying this quite explicitly. But this does not protect our citizens from State sanctioned injustice. Neither does it solve the obvious problem of delayed justice, which is actually justice denied.
What do I mean by this? Well the man still suffered arrest - THREE YEARS AGO. Since the day he was arrested he was humiliated, possibly taken to the Police station, then charged in Court etc. Can you imagine the humiliation, indignity, stress and fears he must have suffered. Then he had to hire lawyers, suffer costs, time wasted and challenge the entire system, all the way to the Federal Court. And this time, he was fortunate, all the conditions were perfect and he has won his case.
But this is not justice. This case actually proves the opposite : that the citizen is not protected BY THE LAW.
When the citizen can be arrested, charged in Court, has to go undergo suffering and mental torture, and then has to waste THREE YEARS of his life to "unsnag" this "legal technicality" to protect himself FROM THE LAW !!
That is NOT justice. It is a very cruel and unfair system that we have.
This is a Legislative matter, under the jurisdiction of the Parliament. Unfortunately the Members of Parliament do not have the IQ to understand much of this. Neither will their voters in Parit Besar or Air Lumpur be too concerned with these issues. So the injustices will continue.
But we still need a solution. Can we appeal to the legal eagles especially the Attorney Generals Chambers, the Judiciary, the Bar Council, the Human Rights groups to get together and propose amendments to the Federal Constitution that make it illegal for States to enact any criminal enactments without Parliamentary approval?
Because there is a huge black hole in this area.
Case No 1 - Recall that young woman who was caned in public in Terengganu. How did that happen? Under what enactment or power was the State able to do that? Because under Malaysia's Criminal Procedure Code women CANNOT be caned or whipped.
I am sure if that woman in Terengganu had hired Dato Malik Imtiaz Sarwar as her legal counsel her fate may have been different. Which is exactly the point. The people have to suffer arrest, humiliation then they have to be burdened with hiring lawyers, waste years in their lives before they see some justice. What type of justice is that? That is not justice.
Case No 2 - When the Pas fellows wanted to enact the Pas Hudud in Kelantan (during the time of Dr Mahathir) Dr M told the Pas to bring it up to Parliament for a vote. Which they could not do.
Meaning even though it was a Kelantan state matter, the Prime Minister righfully said that the matter should be brought to Parliament. It was also made known that if Kelantan went ahead and imposed the Pas Hudud in Kelantan they would not get the cooperation of Federal agencies like the Police, Prisons etc to enforce their hudud.
So the question arises : how was that young woman caned in public in Terengganu?
This is why we need to amend the Federal Constitution to say that (despite the States having the power to legislate criminal laws pertaining to religion) all such laws must be tabled in Parliament for Parliamentary vetting and endorsement vis a vis the Federal Constitution.
The reason is simple - Parliament is the guardian of the Federal Constitution (because Parliament can amend and change the Federal Constitution at anytime lah). So Parliament should vet all proposed State legislation which may impinge upon the rights of the ordinary citizen under the Federal Constitution.
Otherwise (if you dont amend the Constituion) you will have cases like this where the man was arrested by the Syariah fellows, he suffered mental torture for three years, he was fortunate enough to have wise legal counsel to take up his case and now he is free.
You will have to assemble NINE JUDGES of the Federal Court (at what tremendous cost - both in terms of money, time and effort) to finally unsnag this situation.
- What a waste of time.
- What a waste of effort.
- What a travesty.
- This is not justice.
What about that woman who was caned in Terengganu? Where is the justice for her because under our CPC, women cannot be caned. Yet she was caned and in public.
So please amend the Federal Constitution so that our citizens do not have to suffer situations like this anymore.)
“Although the range of the state legislature to enact “offences against the precepts of Islam” appears to be so extensive as to comprise almost ‘every single rule, conduct, principle, commandment, and teaching of Islam prescribed in the Shariah’, in reality there is constitutional limitation upon the subject matter of the legislation enforced by the preclusion clause.
“So construed, there could be no doubt, to my mind, that the state legislature cannot create offence already dealt with in the Federal List,” the judge said.
Based on this reason, Justice Azahar concluded that the state legislature does not have the sole or exclusive right to make laws on Islamic criminal offences, stating that the preclusion clause clearly implies that the state legislature only has residual powers to make such laws and that it is subject to the federal jurisdiction on criminal laws.
He noted that “criminal law” comes under Parliament’s law-making powers under Item 4 of the Federal List and said the offence of unnatural sex offence in Section 28 obviously falls within that category.
“By that I mean, in practical terms, that even if Parliament has yet to make legislation with respect to an offence of sexual intercourse against the order of nature, still the State Legislature is precluded from legislating on this subject matter,” he said.
The judge however highlighted that the Penal Code — which applies to both Muslims and non-Muslims and is administered in civil courts — was enacted much earlier than Selangor’s Section 28.
The Penal Code is a written law by Parliament that covers most of the criminal offences and punishments in Malaysia.
In explaining his conclusion, the judge said: “Put another way, only Parliament has power to make such laws with respect to the offence of sexual intercourse against the order of nature.”
(OSTB : Yang Arif, although I am not a lawyer, common sense dictates that for the same crimes the legislated maximum punishment must be the same. If someone steals a chicken the maximum punishment under the laws must be the same. The exact amount of the punishment will be according to the Court and the circumstances of the case.
It is not justice when the same crime is treated differently in different states - whether they are religious crimes or not. Are all the Syariah punishments the same across all the states? I dont think so. How then can it be just?
Or when the crime itself may or may not exist in different states. For example in the hudud of Pas Terengganu they proposed rebellion (bughah) as a crime. This crime is unknown in Syariah criminal enactments in other states, including the hudud of Pas Kelantan.
Some say hudud has eight parts. Others say hudud had six parts. And each 'Islamic' country has its own version of Syariah.
In Taliban Afghanistan the punishment for homosexuals was to push a brick wall on them. If they survived or died that was their fate. The Taliban called it Syariah.
In Iran they used to take homosexuals up in the air in a helicopter and then push them out to fall and die. The Ayatollahs called it their version of 'Syariah'.
What is the minimum value of a stolen item before it becomes a hudud offense? The minimum values differ between different interpretations of hudud. If someone steals x kilos does he get his hands cut off? He may or he may not. So can it be just to have different measures for crimes and their punishment?
And for everyone's information the punishment of three years jail, RM5000 fine and six strokes of the rotan ARE NOT PART OF THE SYARIAH.
And it is only because the Barisan Nasional ruled almost all the States for over 60 years (with the exception of Kelantan and Terengganu) that the BN was able to enforce a uniform "3,5,6" punishment for Syariah across the States where it held power. (3,5,6 meaning 3 years jail, RM5,000 fine and six years jail).
But the 3,5,6 punishment is NOT part of Syariah. It is purely a Malaysian invention.
The debates on this subject are endless. Why? Because no one has absolute proof for religious laws. For every argument there is a counter argument.
So let us not heap injustice upon our people just for the excitement of establishing one unproven and inconclusive argument over another. That will be gross injustice).
Justice Azahar disagreed with Mais’ claim that the state legislature would not be able to make any laws on offences if every offence is a criminal law and that the state legislature’s law-making powers would be redundant.
Instead, the judge said the Federal Constitution guarantees that states have the power to make laws on offences against the precepts of Islam unless already covered in the Federal List, explaining his view that this meant states could still validly make laws on offences that are “purely religious” in nature.
Justice Azahar noted that there are three categories of Shariah criminal offences in Malaysia that would remain valid as state laws, despite the “preclusion clause”, namely
1. offences relating to “aqidah” or the Muslim faith (including wrongful worship, deviating from Islamic belief, teaching false doctrines)
2. offences relating to the sanctity of Islam and its institution (including insulting the Quran, failure to perform Friday prayers, disrespecting Ramadan and not paying zakat)
3. offences against morality (including consuming intoxicating drinks, khalwat or close proximity and zina or sexual intercourse outside marriage).
“As can be seen, these are offences in relation to Islamic religion practiced in this country that must conform to the doctrine, tenets and practice of the religion of Islam. In short, I refer to these offences as religious offences,” he said, adding that this is a non-exhaustive list of examples of religious offences that can be validly enacted by state legislatures, based on the facts of each case.
“In my opinion, all these offences are purely religious in nature that is directly concerned with religious matters or religious affairs,” he said, citing Article 74(2) when saying that these religious offences which regulate Muslims’ beliefs and practices can only be created through laws passed by state legislatures and that such religious offences would not fall under the category of “criminal law” in the Federal List.
He noted that such religious offences come under the Shariah courts’ jurisdiction and only apply to Muslims.
The judge said that such laws should be made by the state legislature — instead of Parliament — due to the State List, and as it is only the states that have the powers to make laws on such matters.
“It is the states alone that can say what should be the religious offences, which are reserved expressly for legislation by the state legislatures,” he said.
Stressing that “criminal law” is a federal matter for Parliament to make laws on and that Islamic criminal law that is not caught by the preclusion clause is for state legislature to make laws on, the judge noted that the reason for this complicated division of federal and state law-making jurisdictions would require a close look at Malaysia’s legal history which stretches back to the beginning of the Malay states and the colonial rule period.
In his summary, Justice Azahar did not agree with the Selangor government’s and Mais’ arguments that Section 28 is constitutionally valid as the federal and state laws on unnatural sex could allegedly co-exist, noting that this was because of the Federal Constitution’s Article 8 which provides for equal protection of the law and non-discrimination against Malaysians.
In this case involving the Malaysian Muslim man for example, Justice Azahar noted that the other male persons in the man’s Shariah case included three non-Muslims.
Justice Azahar pointed out that Section 28 of the Selangor state law which only applies to Muslims is punishable by a maximum sentence of jail up to three years, fine up to RM5,000, or whipping up to six strokes or any combination, while Section 28 would not apply to non-Muslims and the non-Muslims could instead be charged in the civil courts under the Penal Code’s Section 377 which is punishable with a maximum jail term of up to 20 years and also fine or whipping.
With Article 8 of the Federal Constitution providing for all persons to be equal before the law and no discrimination against citizens only on grounds such as religion, the judge had said it would be hard to deny that a non-Muslim would be discriminated in such a situation as a Muslim would have the benefit of a lesser sentence for a substantially similar offence.
Justice Azahar said this was among the reasons why he concluded that Section 28 is invalid as it was ultra vires or went beyond the Federal Constitution, noting that the state legislature had made Section 28 when it had no power to make law on the unnatural sex offence and that “only Parliament could enact such a law”.
The Shariah trial for the Malaysian Muslim man has yet to start, as it has been put on hold while waiting for the Federal Court’s decision today, his lawyer confirmed. The man’s name is being withheld on the lawyers’ request, due to concern over the potential harm or risks he may face if named publicly.
(OSTB : It is very sad that the identity of the person has to be protected from the public. We have a society which cannot be trusted with obeying the law.)
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.
✍ Credit given to the original owner of this post : ☕ Malaysians Must Know the TRUTH
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