Mahkamah, masjid, and merger

The New Straits Times, Kuala Lumpur


COMMENT: Mahkamah, masjid, and merger
Mahadev Shankar

Feb 18 2006

BEFORE the Mahkamah Agong crossed the Sungei Gombak, the venerable
institution and the Masjid Jamek had stood side by side for nearly a
hundred years on a spur of land marking the confluence of the two
rivers which gave Kuala Lumpur its name.

Since it was opened in 1909, Masjid Jamek was the revered focus of
the faith of the Malay community.

Alongside it, separated by a low wall, was the Supreme Court building
in which was ensconced the Fountain of Justice to provide the healing
waters needed to damp down any tensions which might have ruffled the
tranquility of the multi-ethnic community.

Today, when the strident demands of religious fundamentalism and
exuberant irrationality are threatening to undermine the peace
between nations, it may yet profit us to ponder how our Masjid and
Mahkamah survived side by side in synergistic harmony for over a
hundred years.

By the late 1980s, the civil courts had decided hundreds of cases
which involved issues of Syariah, especially on matters of
succession, wakaf and so on.

Specific issues of Islamic law could be referred to the Majlis, whose
fatwa were scrupulously enforced by the civil courts.

It was the late Lord President Tun Mohamed Suffian's proud boast that
if you blocked the name of the judge on any page in the Malayan Law
Journal and only read the report, you could not guess the ethnic
origins of the author.

In terms of nation-building and integration of our multi-racial
community, the judiciary had already achieved homogeneity.

The merger of personal and customary law with the civil law was a
fact and blossoming into its full potential.

Alas, in the field of public law the judiciary found itself on a
collision course with the executive by the mid-Eighties. In 1988, not
just the Lord President and five judges of the Supreme Court were
unseated. Article 121 of the Constitution also came in for the
executive axe earlier that year.

The then Prime Minister was reported recently as having said, "I
suppose I got away with it!"

A Freudian slip perhaps, leaving us now to ask ourselves what he has
got us into since the pigeons have all come home to roost.

Before the Constitution Amendment Act 1988 (Act A 704), Article 121
(1) read:

"Subject to Clause 2 the judicial power of the Federation shall be
vested in two High Courts of co-ordinate jurisdiction and status."

After the amendment Article 121(1) read:

"There shall be two High Courts of co-ordinate jurisdiction and status."

The specific words "the judicial power" had disappeared and with it
presumably the unlimited original jurisdiction of the High Court
because the following new Article 121(1A) now provided:

"The courts referred to in Clause (1) shall have no jurisdiction in
respect of any matter within the jurisdiction of the Syariah courts."

This clause by itself does not confer jurisdiction on the Syariah
courts. That had to come by legislation by the State in which each
Syariah court is located.

If all the parties to a dispute were Muslims and the point at issue
was manifestly within the purview of the Syariah Law, there should be
no difficulty.

But what if one of the parties to a dispute was not a Muslim? What if
the dispute involved some matters which were within the exclusive
preserve of the civil court and other matters which had to be
determined by Syariah principles?

And what if, notwithstanding that both parties were Muslims, the
factual matrix of the problem did not place the matter within the
purview of the Syariah court but within the jurisdiction of the High
Court?

In life nothing is so clear cut: In a number of cases the very
question whether "a matter was within the jurisdiction of the Syariah
court" could be a contested issue which could not be determined
without first determining which party was telling the truth.

The residuary unlimited original jurisdiction of the High Court
predicates that where it is not clear in which court jurisdiction
resides, that issue should be determined by the High Court and the
matter be remitted to the Syariah Court for disposal if that was the
right thing to do.

All judges take a solemn oath when appointed to office that they will
uphold the Constitution. To decline jurisdiction where it exists or
to decline jurisdiction if that issue is contested is an abdication
of the judicial oath.

The recent refusal of the High Court to exercise jurisdiction in such
a case has resulted in the present imbroglio where the Syariah Court
has now been left to determine whether a particular matter comes
within its jurisdiction when the facts required to confer that
jurisdiction are themselves in dispute.

The Shamala Sathiyaseelan case in 2004 is ironic in that the judge
there actually went so far as to admonish the Hindu wife on her
duties as to the upbringing of her children in the Islamic faith when
he should have said he had no voice in the matter at all if the
correct view was that Article 121(1A) denuded him of any jurisdiction
in the matter.

Confusion is further confounded even in cases where both parties are
Muslims.

Under the civil law women are regarded as feme sole, i.e. independent
persons with personal and property rights.

Indeed Article 8 was specifically amended by the Constitution
(Amendment) (No 2) Act 2001 to put beyond all doubt that in Malaysia
there should be no discrimination on grounds of gender and women are
to be treated as being equal to men in the eye of the law.

Situations may occur where a Muslim spouse may inflict bodily injury
or material damage to the property of the other spouse. Syariah law
may well provide relief for these matrimonial offences.

Sexual abuse of the minor children of the marriage by a previous
husband is regularly reported in the local Press. Such victims have
elected to sue for damages or initiate a criminal prosecution in a
civil court.

If the High Court, by virtue of Article 121 (1A), is to have no
jurisdiction because of the involvement of some Syariah elements in
the problem, why should the subordinate civil courts be in any better
position?

Further conundrums surface when we consider the differential approach
of the State Syariah Courts to powers of search and punishment — as
witnessed in the recent alleged breaking in and assault of a couple
suspected of khalwat — and the attempts to introduce hudud in
Terengganu and Kelantan.

We may now move on to consider other dire consequences which threaten
to follow if the law is not clarified.

The Federal Constitution is stated to be the supreme law of the
Federation and Article 8 lays down that:

"All persons are equal before the law and are entitled to equal
protection before the law."

Before Article 121(1A) of the Constitution came into force, a spouse
under the Law Reform (Marriage and Divorce) Act 1976 had the equal
protection of that law in the event of divorce as regards rights to
maintenance, alimony and an equitable division of the family
property, in addition to guardianship and custody rights over the
children of the marriage.

Spouses also had inheritance rights under the Inheritance and Family
Provision Act 1971, and the Distribution Act 1958 in the event of
intestacy.

Recent cases have given rise to apprehensions that a de facto act of
conversion to Islam by one spouse could virtually render nugatory all
the antecedent protection that the aforesaid laws gave the other spouse.

In other words, notwithstanding the supremacy of the Federal
Constitution, it seems that the converting spouse can by that act
alone successfully trump all his antecedent legal liabilities and
achieve an effective "repeal", both of the Federal Constitution and
the aforesaid relevant laws in so far as he is concerned — something
which would need a two-thirds majority in Parliament for general
application! The "jurisdiction" of the High Court referred to in
Article 121(1A) is both civil and criminal.

The attempts by the State legislatures to introduce hudud in Kelantan
and Terengganu have taken the prospective unravelling of the Federal
Constitution into a far more perilous dimension which could estrange
the centre from the peripheral States.

The enforcement of the criminal law is a Federal matter, but why
should it now not be contended that the effect of the State
legislation in this respect is to override Federal law?

Law and order is not merely a State matter and any prospect of
further uncertainty in this area is simply too awful to contemplate.

The Prime Minister's announcement that all aspects of the
implementation of Article 121(1A) have to be clarified has been most
timely.

Unless such clarification provides iron-clad guarantees of antecedent
civil rights, the equal protection of the law given by Article 8 of
the Constitution is in danger of becoming a mirage.

Whatever may have been the political intention of Article 121(1A) at
the time it was passed, the manner in which it has been implemented
has virtually introduced an iron curtain between the Syariah courts
and the civil courts.

Any talk of merger in such a scenario will at best be a pious hope
and at worst an exercise in futility.

Merger will only be possible if those who have to apply the law in
Malaysia also have the wherewithal to temper and apply the law by the
application of common law and the rules of equity, only so far as the
circumstances of Malaysia's inhabitants permit and subject to such
qualifications as local circumstances render necessary.

This time-honoured formula, enshrined in the Civil Law Act 1956,
served us well until the 1988 amendment and could still be the glue
required to make a truly Malaysian identity credible.

Clarification when it comes must enable both the Syariah and the
civil courts to act in tandem with each other where there are
overlapping issues.

That objective could be achieved if every word in the Federal
Constitution is allowed to carry its purposive natural meaning, the
rights it guarantees all its citizens are respected, and "equal
protection of the law" is fleshed out by providing equal access to
justice.

Article 121(1A) can only be left alone as long as it is clearly
understood that a matter is only within the jurisdiction of the
Syariah Court when all the elements involved, both as to the identity
of the parties and the subject matter of the suit, are manifestly
within the ambit of its powers and limitations.

The law-givers who have been entrusted with the task of clarifying
the law will do well to keep in the forefront of their minds Article
4 of the Constitution:

"This Constitution is the supreme law of the Federation and any law
passed after Merdeka Day which is inconsistent with this Constitution
shall to the extent of such inconsistency be void."

Authorititative identification and neutralisation of those laws
enacted after Merdeka which are inconsistent with the Constitution
are also a part of the process of clarification.

* Datuk Mahadev Shankar, a retired Court of Appeal judge, is a
consultant with a legal firm in Kuala Lumpur.