IT is difficult to tell whether religious authorities are becoming increasingly zealous in enforcing religious compliance or whether the public are generally becoming more assertive about their personal legal rights, but there is a definite increase in the number and notoriety of cases involving syariah issues.
Under the Federal Constitution, it is the State and not the Federation that has the power to make laws with respect to Islamic law and the personal and family law of persons professing the religion of Islam.
Fundamental liberties: With the Constitution declared as the supreme law of the Federation, laws passed by Parliament and the States are void to the extent of any inconsistency with the Constitution.
Since syariah legislation is bound to include strictures on personal behaviour, it is natural that they are liable to face challenges on the grounds that certain restrictions on personal behaviour infringe the fundamental liberties guaranteed under Part II of the Constitution.
For example in Muhamad Juzaili, several Muslim men were repeatedly detained, arrested and prosecuted by the state religious authority for cross-dressing, which was a form of conduct prohibited and made an offence by the Syariah Criminal Enactment 1992.
On their application for a declaration that the legislation was void for being unconstitutional, the Court of Appeal held that the applicants were entitled to the fundamental liberty guaranteed under Article 5(1) of the Constitution.
On the basis that the applicants were shown to have been suffering from Gender Identity Disorder, their arrest and prosecution interfered with their movements in public places to reach their place of work, which amounted to an interference with their right to life and as such was the effect of the legislation, it was held on that ground to be void.
The Federal Court has since set aside the decision of the Court of Appeal on jurisdictional grounds, so the substantive issues remain unresolved.
Renouncing the faith: Perhaps the ultimate test of the court’s willingness to entertain an application for judicial review of syariah matters will be in cases involving the renunciation of faith.
In Syarifah Nooraffyzza, the applicant, who was born a Malay and brought up as a Muslim, embraced the Christian faith out of her own free will and was baptised.
The National Registration Department refused to entertain her request to change her religious status in her identity card, asking for a letter from a religious authority releasing her from Islam.
She then applied to the High Court for an order of mandamus to compel the religious authority to issue the letter of release and the Department to change her status.
In refusing her application for leave to apply for judicial review, the High Court held that the issue was not justiciable, the issue whether a person is a Muslim or not falling within the exclusive jurisdiction of a Syariah Court. The learned judge felt herself bound by several decisions of the Federal Court.
In another case, the Federal Court had held that the freedom of religion under Article 11 of the Constitution required a Muslim to comply with the practice and law of Islam concerning leaving the religion and that only when the requirements of the religion of Islam are complied with and the Islamic religious authority certifies the apostasy can the Muslim embrace the Christian faith.
The reasoning of the courts in the various decisions on the issue of the right to renounce Islam present some difficulty and there may be room for the law to develop with more clarity in the future, although the authority of existing decisions will have to be addressed.
Judicial reticence: Judicial assertiveness in dealing with the rise of judicial review cases is tempered somewhat by occasions of what may appear to be reticence on the part of the courts to be seized of issues on syariah matters, which are often considered “sensitive” in Malaysian society.
In Kassim Ahmad, the applicant sought to quash the decision of the Syariah Chief Prosecutor to charge him for the offences of “ridiculing the practices of Islam” and acting in contempt of religious authority.
He also challenged the actions of the Federal Territory Islamic Religious Department (Jawi) in raiding his office in Putrajaya and his home in Kedah, seizing his writings, and arresting him.
The High Court dismissed the application for judicial review on the grounds that the applicant ought to resort to his remedies under syariah law.
The learned judge held that the applicant was entirely wrong in accusing Jawi of having abused their powers when he had an alternative remedy of appeal in the Syariah Court and that the applicant had blatantly refused to submit to the syariah jurisdiction.
Unfortunately, the court did not enter into a full discussion whether Jawi’s actions were unconstitutional to the extent that the fundamental liberties of the applicant under Articles 5, 7, 8, 10 and 11 of the Constitution had been violated by the actions taken by Jawi, as submitted by the counsel for the applicant.
However, the Court of Appeal set aside his arrest and prosecution on the grounds that the Federal Territory religious authority had no jurisdiction over the applicant as he was a resident of Kedah. It also held that the civil court had supervisory jurisdiction over the Syariah Court, which is an inferior tribunal, where there is an error of law.
Conclusion: In England, the common law had its beginnings significantly influenced by Christian philosophy. The common law rested almost entirely upon a religious conception that looked to higher or natural laws as the primary basis for judicial decisions.
However, it was not long before judges began to rely more on reason than accepting Christian doctrines without question.
Christian values then became woven into the fabric of the common law, which very soon lost its identification with the religion and became part of the rational common law.
Christianity as a religion therefore found its place in a secular society governed by common law.
One can see as a real possibility a similar development in a common law jurisdiction like Malaysia where Islamic values are concerned, if reason finds its proper place.
Perhaps it is not reconciliation between the religion and law that must be sought, although the human mind is naturally driven to make sense of opposites.
A more profound approach would be to embrace the contrast.
> The above is an updated excerpt from a chapter written by lawyers Koh Kek Hoe and Fawza Sabila Faudzi Daud for the G25 publication, ‘Breaking the Silence: Voices of Moderation’ . The views expressed here are entirely the writers’ own.