Recent Developments in Malaysia Constitutional Law by Tun Dato' Sri Ahmad Fairuz Bin Dato' Sheikh Abdul Halim, Chief Justice of Malaysia
Ladies and Gentlemen, the subject of my lecture this evening is ‘Recent developments in Malaysia’s constitutional law’. I chose this topic due to the influence of current events and issues that have made headlines in our local dailies. And I think it is also in tandem with the stated aim of the Review Lecture, namely, it ‘serves to promote the objectives of the Review in creating an awareness of current legal issues, as well as to promote legal thinking and discussion amongst law students.’ Ladies and Gentlemen, I have noted that the past speakers of the Review Lecture were luminaries in their chosen fields. Thus in accepting the invitation to deliver this lecture it was not without trepidation on my part. Anyway before proceeding further may I register a caveat. May I emphasize that in what follows, I may express my own personal views on the several issues raised. However, I am open to persuasion and may change my aforesaid views.
Ladies and Gentlemen, I propose to go back as far as 1988 in the legislative amendments primarily because the impact of some of the amendments from that year onwards manifested only in recent years either through executive actions or judicial pronouncements.
In coming to its decision, the Federal court inter alia considered the case of Md Hakim Lee v Majlis Agama Islam Wilayah Persekutuan (1997) 4 CLJ supp 419 which held that if the State Legislature, although given the power to legislate on matters under the State List, does not as yet do so, then that will not detract from the fact that those matters are within the jurisdiction of the Syariah court within the contemplation of item 1 of the State List. The Federal Court also considered the case of Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang (1996) 3 CLJ 23 where Abdul Hamid J. (as he then was) held that the State Legislature must first, according to Articles 74 & 77 and the State List, enact laws conferring jurisdiction on the Syariah Court. Only then will the matter come under the jurisdiction of the Syariah Court. (The same learned High Court Judge in Abdul Shaik b. Md. Ibrahim v Hussein b Ibrahim (1999) 5 MLJ 618 referred to the relevant phrase in the State List which reads. “…. the constitution, organization and procedure of Syariah Courts which shall have jurisdiction over…. and in respect only of ANY of the matters included in this paragraph (emphasis added)”. The learned judge stressed on the use of the word “ANY” which, according to him, can only mean that when a State Legislature makes laws establishing the Syariah court, it can choose from amongst the matters enumerated in the State List which of them it wants to confer jurisdiction on the Syariah court.)
It is against this background that the most recent and controversial case involving Article 121 (1A) burst upon the Malaysians’ consciousness when the High Court on 28.12.2005 in the case of Kaliammal a/p Simnasamy v Pengarah Jabatan Agama Islam Wilayah Persekutuan (JAWI) and 2 others (commonly known as the Moorthy case) took the view that it lacks jurisdiction and the power of judicial review over a Syariah court decision. Briefly, in this case, the applicant who is a Hindu, married one Moorthy a/l Maniam who was also a Hindu, on 25.11.1995. Upon his demise the applicant claimed that her late husband had never told her of his new faith and that he was in fact practicing the Hindu faith at all times. With a view to resolve the impasse the Federal Territory Islamic Council filed an ex-parte application to the Syariah court and obtained an order therefrom which inter alia declared that the deceased was a Muslim at the time of his death, that the deceased was to be buried according to Islamic rites and that the deceased had never renounced his faith in Islam. Meanwhile the widow also applied to the High Court Kuala Lumpur for inter alia, a declaration that the deceased was a Hindu. Unfortunately by the time her application was heard the Syariah court had already made its decision. The High court dismissed her application on the ground that it lacked jurisdiction by virtue of Article 121(1A).The widow is a non-Muslim. Thus she is not entitled to appear before the Syariah court since paragraph 1 of the State List expressly states that Syariah courts ‘shall have jurisdiction only over persons professing the religion of Islam..’. At the same time Article 121(1A) is a hurdle for her to cross when seeking remedy in the civil court. Hence, based on the decision of the High court she appears to have no forum for redress. The widow is appealing to the Court of Appeal against the decision of the High court.
Incidentally soon after the Moorthy’s case another similar case came into public attention. It is commonly known as the ‘Nonya’s case’. Briefly, a Malay lady married a Buddhist man and adopted his religion after the marriage in 1936. In 1986 she gave a written declaration to the Alor Gajah Religious office and the Mahkamah Kadi that she wanted to live a Buddhist and be buried as one. Investigation was then carried out by the Alor Gajah District Religious affairs officer who concluded that she had no intention to return to Islam. But when she died at the age of 89 years old a dispute still arose as to which religious burial rite applied. The matter was brought before the Seremban Syariah High court to determine her religion before her death. Affidavits from the non-Muslim relatives of the deceased were accepted by the court in its deliberation. In its final decision the court declared that the deceased was not a Muslim at the time of her death. She was therefore given a Buddhist burial rite. The reason for my referring to this case is to highlight the fact that the Syariah High court did not have any problem accepting affidavit from non-Muslims. Could this be an answer to the apparent conflict so far between the Syariah courts and the Civil courts despite the insertion of Article 121(1A)? I think the question requires further study before a conclusive answer can be made.
Conclusion
There is no dispute that a written constitution must be viewed by a judicial arbiter as a living document sensitive to the needs of the time if it is to be relevant and beneficial as a sacred covenant between a state and her people. Hence, there is no question of it being cast in stone immune from any change or development by way of positive amendments by Parliament or judicial pronouncements. And the Malaysian Federal Constitution is no exception as I have just attempted to demonstrate. But ideally any amendment or development in constitutional law should only be made to meet the needs of current environment and circumstances and for the betterment of human life in this planet.
There is no dispute that a written constitution must be viewed by a judicial arbiter as a living document sensitive to the needs of the time if it is to be relevant and beneficial as a sacred covenant between a state and her people. Hence, there is no question of it being cast in stone immune from any change or development by way of positive amendments by Parliament or judicial pronouncements. And the Malaysian Federal Constitution is no exception as I have just attempted to demonstrate. But ideally any amendment or development in constitutional law should only be made to meet the needs of current environment and circumstances and for the betterment of human life in this planet.
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