The Siti Fatimah decision is unconstitutional
May 17, 2008
‘…the civil High Courts, the Court of Appeal and the Federal Court are established by the constitution itself. But, that is not the case with the syariah courts. A syariah court in a State is established or comes into being only when the Legislature of the State makes law to establish it, pursuant to the powers given to it by item 1 of the State List. In fact, the position of the syariah courts, in this respect, is similar to the session courts and the magistrates’ courts’
‘…the Legislature of a State, in making law to “constitute” and “organize” the syariah courts shall also provide for the jurisdictions of such courts within the limits allowed by item 1 of the State List, for example, it is limited only to persons professing the religion of Islam’
These are excerpts from the unanimous judgment of the Federal Court in the case of Latifah Mat Zin, as pronounced by Justice Hamid Mohamad, delivered on 25th July, 2007.
For those so inclined, the full judgment, in pdf, is linked below
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‘…consent or waiver cannot confer jurisdiction upon a court… If reinforcement is required to support the proposition that neither consent nor estoppel nor waiver can confer jurisdiction upon a court that lacks jurisdiction, it may be found in the speech of Lord Reid in Essex County Council v. Essex Incorporated Congregational Church Union[1963] 1 All ER 326, 330. The learned Law Lord addressed the point as follows: [I]n my judgment it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction’
This is an excerpt from the unanimous judgment of the Court of Appeal in the case of Chee Pok Choy, as pronounced by Justice Gopal Sri Ram, delivered on 24th March, 2001.
For those so inclined, the full judgment, in pdf, is linked below
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You could draw the following conclusions from these judicial pronouncements :
- Our 2 civil High Courts, the Court of Appeal and the Federal Court are created by the Constitution. No further act of Parliament is required to constitute these courts.
- The syariah courts are not created by the Constitution. The Constitution allows for their creation by Federal or state legislation. Until such law is passed, no syariah court exists.
- The syariah courts are not in a similar position to that of the 2 civil High Courts, the Court of Appeal and the Federal Court. The syariah courts are comparable to the Sessions and Magistrates courts, which are also created by statute.
- The jurisdiction of Syariah courts is only over persons professing the religion of Islam. A non-Muslim therefore cannot enlarge the jurisdiction of the Syariah Court by submitting to the jurisdiction of that court. That limit to the jurisdiction of the Syariah Court cannot be enlarged by any individual howsoever.
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Assume that a Christian Arab named Tariq Aziz and a Malay Muslim woman are caught by Islamic religious enforcement officers in a compromising position in a hotel room in Penang.
Both are hauled before the Syariah Court.
Tariq challenges the jurisdiction of the Syariah Court over him, claiming that he is Christian and therefore beyond the jurisdiction of the court.
Does the Syariah Court have to take his say-so and let him go, or does it at least have the limited jurisdiction to examine and verify his claim first and, after so verifying, to then release him?
The short answer is that the Syariah Court would be seized of that limited jurisdiction.
However, once the exercise of that limited jurisdiction has established that Tariq is indeed a Christian and not a person professing the religion of Islam, it cannot proceed to try Tariq in respect of any criminal charge, nor can it hear him in respect of any application he may wish to make.
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Was Siti Fatimah a ‘person professing the religion of Islam’ when she filed her application in the Penang Syariah Court that finally led to the decision which was reported in all the major newspapers?
By filing her application in the Syariah Court on 10th July, 2006, had not Siti Fatimah laid the plainest evidence before the Syariah Court that she was not a ‘person professing the religion of Islam’? And if so, would this in itself not be evidence that the Syariah Court was not seized of jurisdiction to hear her application?
What was it that Siti Fatimah had applied for?
Was Siti Fatimah’s case one of a Muslim asking for permission to renounce Islam or that of a non-Muslim seeking a declaration of the Syariah Court as to her non-Muslim religious status? And if the latter, could the Syariah Court hear such an application at the instance of a non-Muslim?
Utusan reported that in support of her application, filed on 10th July, 2006, Siti Fatimah had confirmed that ’sepanjang memeluk agama Islam, dia masih lagi menyembah berhala Tok Pek Kong, berhala Kuang Tin Ne dan berhala Ti Kong (Dewa Langit) mengikut ajaran agama asalnya, Buddha dan memakan daging khinzir’.
NST reported that the Syariah Court judge had said that ‘in Siti Fatimah’s case she had not followed Islamic teachings from her conversion onwards and remained a Buddhist’.
She had remained a Buddhist, it would seem, even after her conversion.
What this means is that she was never a practising Muslim.
Jurisdiction of the Syariah Court, though, does not turn on whether the individual concerned practises Islam.
In the case of Siti Fatimah, it turned on whether she did profess Islam.
which takes us back to the all-important question : Was Siti applying, as a Muslim to renounce Islam, or as non-Muslim hoping to have that fact declared by the Syariah Court?
A two-part video clip of an interview with her counsel, Ahmad Jailani Abdul Ghani, is most helpful.
The first part
The second part
Ahmad Jailani is a graduate of IIU and has been in legal practise for more than 11 years. He knows well the limitation to the jurisdiction of the Syariah Court that was alluded to by Justice Hamid Mohamad in the Latifah Mat Zin case.
For those of you who might not be inclined to view the two clips in toto, I have prepared a transcript of the parts that I think are worthy of note.
In the first part, after being asked to narrate the background to the case and after doing so, Ahmad Jailani embarks on a most remarkable self-indictment.
4.00 minutes into the first video clip – Cuma bila orang tanya Ana, Ana punya jawapan berbeza, Ana tengok pada crowd, pada audience, ada yang kita bagi tahu untuk public, dan ada kita bagi tahu untuk orang yang ada fikra Islam, sebabnya kalau untuk public, kita cerita bahawa kes macam ini bukannya kes minta kebenaran nak keluar Islam, sebab memang tidak tidak beri kebenaran, sebab murtad itu haram, Cuma kes kita sekarang ini ialah kes menentukan status agama dia. Kita nak kata dia Islam atau dia kafir sekarang? Kes dia macam itu.
Allow me a slight digression here to note that the Holy Qur’an describes such behaviour that Ahmad Jailani has candidly admitted to with a very specific word. Those who are familiar with the scripture will know what that is.
Still at the first part, Ahmad Jailani then makes known the nature of the application.
4.56 minutes into the first video clip - Kalau dia nak minta keluar Islam, tak boleh, haram. Tapi sekarang ini, amalan dia, adakah dia Islam ataupun kafir? Jadi kita kata permohonan ini adalah untuk menentukan status agama dia.
In the second part of the video interview, it becomes clearer whether Siti Fatimah was a Muslim applying for permission to renounce Islam, or a non-Muslim applying to have that fact declared.
2.54 minutes into the second video clip - Ana takda bela orang murtad.
4.40 minutes into the second video clip –Kes Lina Joy, peguamnya berhujah mengkatakan kebebasan beragama kita boleh keluar Islam. Kes kita, kita tetap kata keluar Islam itu haram. Cuma kita nak tentukan status agama.
Was Ahmad Jailani aware that he was taking the case of a person who does not profess Islam to the Syariah Court?
30 seconds into the second video clip – Ana sudah Berjaya dan Ana sudah menang, sebabnya orang bukan Islam sanggup di Mahkamah Syariah.
Now, please forgive me a second and very brief digression.
2 minutes into the first video clip, Ahmad Jailani says that both Malik Imtiaz and I contended that the Lina Joy case had to go to the civil courts because if she went to the Syariah Court, that would elevate the status of the Syariah Courts. He also claims that Imtiaz had made a statement that the Syariah Court is equal in stature to the land office.
Both Imtiaz and I have consistently contended that Lina Joy need not go to any court to exercise her constitutional right under Article 11(1) to profess and practise her religion of choice. We also agreed with the Court of Appeal that her case was one of judicial review of the decision of the NRD, a jurisdiction exclusive to the civil High Court. It had nothing to do with concerns about elevating the status of the Syariah Court, which in any event, can only be done by an appropriate amendment to the Constitution. There has been none to-date.
As to Ahmad Jailani’s second claim, allow me to respond thereto by quoting the last part of Surah 6 verse 148 :
‘Have you any knowledge with you so you should bring it forth to us? You only follow conjecture and you only tell lies.’
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In my view, Siti Fatimah filed her application in the Syariah Court on 10th July, 2006, patently as a person not professing Islam. She was not asking for leave to renounce Islam, but for the Syariah Court to confirm her non-Muslim status.
Certainly, it appears that that was what her counsel had in mind. Let Ahmad Jailani say otherwise now if indeed that is the case.
Her application, by itself, was evidence of the fact that she did not profess Islam.
The Syariah Court ought to have declined to hear her application on the basis that she not being a person professing Islam, the court was not seized of jurisdiction to hear her application.
To the extent that the recent pronouncement by the Syariah Court judge turned upon a consideration the merits of her application, it would be in excess of jurisdiction, unconstitutional and a nullity.
May 17, 2008 at 7:16 pm
So long as Syariah Courts have NOT been established under the Constitution - they cannot rank pari passu with the High Courts and the Supreme Courts.
Hence anyone stating that the High Court has no jurisdiction over the decisions of a Syariah Court is doing an ill service to his or her Chair and doing a disservice to the Constitution over which he or she took the Oath of office.
Unfortunately most of these ‘persons’ must be appointees after the dismissal of Tun Salleh and the incoming of Tun Hamid and MR LINGAM of correct, correct, correct fame - who has now entered into the annals of not only National history but also Legal History and his name will live on and on for the service he had unwittingly done to the country. It is now clear to the populace why written judgments of the Courts take years to be fabricated and why people have lost utter faith in going to Courts. The sight of Courts now sickens us to the core that one feels a vomit coming when he or she sees a Judge or the Court premises. Those who now sit in Justice over their fellow men apparently are creatures of the LINGAM era and should rightly have no place to sit in judgment over their fellow men. It is said that those who cannot or are incapable of making a living in the public make it a point to seek a Legal position by hook or by crook through the ilk of human beings like LINGAM.
LONG LIVE LINGAM. He has saved the People of Malaysia.
May 17, 2008 at 7:19 pm
Haris, in therms of “elevating the syariah court”, while the syariah court’s elevation may not be legaly declared by a constitutional ammendment, what about people’s perception and the fact that it has already taken place will lead to convention, which eventually becomes legitimate?
I know that the syariah courts are not bound by judicial percedent, but dosen’t common law have a provision for convention?
Thus the syariah court IS being elevated one way or another…in my opinion, which i think mathches the opinion of the majority of the people, and that counts most!
BaronV,
It is for the very reasons that you spell out here that we must continue to assert the supremacy of the Constitution and the framework set up thereunder.
We must nor allow attempts to extra-legally enhance the stature or the jurisdiction beyond that which the written law allows.
May 17, 2008 at 8:17 pm
As in an earlier posting, I have a problem with “professing Islam”. Being born a Malay and having been brought up a Muslim does not necessarily constitute “professing Islam” at any given time. If a Muslim stops “professing Islam” by so invoking or for that matter by so maintaining, is that alone sufficient then, according to your reasoning deny the Syariah Court seizure of jurisdiction? I am inclined to think so. But of course this will not be allowed to happen as the Muslim society would not allow it. But so long as this is going to be the case, how on earth are we ever going to see a judiciary that is fair and above all dispense justice to those who seek it?
Paul,
You said :
If a Muslim stops “professing Islam” by so invoking or for that matter by so maintaining, is that alone sufficient then, according to your reasoning deny the Syariah Court seizure of jurisdiction? I am inclined to think so.
My response :
Unless there is evidence that the individual’s say-so is not in fact true but only to avoid jurisdiction of the syariah authorities, I think so too.
You also asked :
But so long as this is going to be the case, how on earth are we ever going to see a judiciary that is fair and above all dispense justice to those who seek it?
My response :
Choice of religion by a living, adult, sane person should not be a matter for the courts to adjudicate upon. Period
May 17, 2008 at 11:48 pm
My thought would never level the opinion of lawyers as I am myself only a job seeker, too big for me to understand the jargons of law.
But it makes me wonder such a long posting was writen for a purpose to bash the shariah law, what is your agenda. Defenitely the PAS suppoters desperately demand to know.
May 18, 2008 at 5:42 am
This is indeed explosive stuff. The unconstitutional elevation of the Shariah courts by convention and custom is happening before our very eyes. It is being allowed to happen because the politicians and legislators who are clever and informed enough about this issue either have no balls, lack the political will or worse still, perhaps due to personal conviction believe that such an unconstitutional approach is acceptable - that the ends justify the means.
Either way, this points to a derilection of duty on a massive scale by those entrusted to guard our nation’s interests.
The Constitutional Crisis of 1988 created problems that continue to plague the judiciary and the wider society. If this process is allowed to continue it will create potentially more serious problems for our society because it involves the ever-sensitive subject of religion.
Where are the principled politicians with sufficient backbone who will take this thorny issue on before it creates more friction and anxiety?
Have we any such people left?
May 18, 2008 at 1:09 pm
That was a considered and exacting legal opinion Haris.
“But so long as this is going to be the case, how on earth are we ever going to see a judiciary that is fair and above all dispense justice to those who seek it?”
We need activist judges. What we need to see is that clear and independent minds like Haris and Malik Imtiaz become High court judges.
Please consider.
temenggong,
Am always ready to serve my people.
May 18, 2008 at 1:19 pm
Thank you for that answer Haris.
The question that begs asking then is why it is that within the Muslim community alone there is this need for institutionalised policing of its adherents?
What and where is it that these so called “religious police” get their authority from?
Just because the Quran or Hadith says you shall do this or you shall do that or you shall not do this or not do that does not in itself provide for the setting up of an institution to regulate these commands or invocations.
If these so called institutions are not ordained “so called divinely”, of what judicial authority to they assume then? Mandated by man? By society? By the community?
It is important for those who easily get worked up over these matters that they know precisely where it is the authorities are derived from. The way some people respond it would seem like many actually believe divine ordination mandate these institutions. There in lies the problem.
And of course thanks to people like you and Malik there is hope yet.
Paul,
I will not pretend to have all the answers to your questions.
I have, however attempted to share my thoughts on some of the points you have raised in an article entitled ‘Islam-as I say-tion : The slide into tyranny’ posted in cyberspace in April last year. The same may be accessed at
http://www.accin-badailies.org/links_to_quick_reading%20‘Islam-as%20I%20say-tion.htm
May 18, 2008 at 1:57 pm
Piggy Singh,
Please let us know what are you getting at? If you are implying something, kindly back it up.
Read through the post and point to us where is it that it was bashing sharia law?
Pointing out the jurisdiction of any court does not add up to bashing any law.
If stating the truth as it is in our constitution can be deemed as an agenda, then, I believe we are duty bound towards championinng this agenda.
May 18, 2008 at 7:20 pm
The syariah courts are comparable to the Sessions and Magistrates courts, which are also created by statute.
This time, I don’t agree with you Haris. Syariah court is a third class magistrate court, like it or not.
I am no legal expert but this is what I understand on our Federal Constitution.
Malaysia was formed in 1963, not 1957! The former constitution of Federation of Malaya was amended to include Sabah, Sarawak and Singapore. There are 3 partners in this country call Malaysia, which are Federation of Malaya, Sabah and Sarawak.
At the early days of Malaysia, there exists several courts other than the civil courts. We have Kadi courts (now known as Syariah Court) in Penisular Malaysia, Mahkamah Adat in Sabah and Sarawak.
All these courts, under the constitution, which is the basis of the formation of Malaysia, is legally below the civil court. For example, the Mahkamah Adat judges are considered as third class magistrate in the legal hierarchy.
The purpose of these separate courts is to cater to the special needs of the locals, Muslims in Penisular, the natives in Sarawak and Sabah.
Never, I repeat, never it has been intended to be higher or on par with the civil court.
That was the acceptable arrangement which form the basis of Malaysia.To say otherwise means a breach in the agreement between the people of Sabah and Sarawak with Penisular Malaysia.
Many of these Islamists claimed that Mahkamah Syariah must be on ‘upgraded’ on the basis to cater the needs for the Muslims. Did you ever hear they call for the ‘upgrading’ of Mahkamah Adat to ‘cater’ the need of the natives in Sabah and Sarawak, in which the majority of the people are non Muslims?
Munafiq is the best word to describe that.
They don’t know how to honour the Malaysian Constitution which form the basis of Malaysia.
They don’t even know how to honor the agreement between the people of East and West Malaysia in which on that agreement itself that made the people of Sabah and Sarawak agree to form Malaysia with the Federation of Malay States.
Tell me, how and when could a Syariah court status could be elevated when the whole constitution was drafted, agreed and tabled with the understanding that civil court reign supreme over all other courts and whatever contradiction would be solved in the said civil court?
No, a big NO to you. Syariah court is NOT equal to first class Magistrate or Session court. They are like Mahkamah Adat in Sabah and Sarawak, which are third class Magistrate.
To elevate the status of Syariah Court, these steps must be taken. Form a commission, and then have a referendum for the people of Sabah and Sarawak on whether they agree that Syariah Court status be elevated.
The people of Penisular please jangan pandai-pandai sendiri ok? The people of Sabah and Sarawak are your partners. Consult them first. Without them, there are no Malaysia.
What you will have is only half of what is Malaysia today and minus the oil and gas resources of course, means you won’t have your KLCC, Sepang Circuit, Putrajaya and so many white elephant projects you people enjoy but which many rural Sabahans and Sarawakians get to watch on TV only.
As for Syariah Court with the claim it is to cater the needs of Muslims, I would like to say this; Bullocks! I am in the process of writing about this false claim.
Alhadee,
My regard for you grows with every comment you post here.
As for the comparison of the syariah courts with sessions and magistrates courts, that was made by His Lordship Justice Hamid Mohamad. I cannot lay claim to any credit that does not belong to me.
Stay well my friend. Look forward to your posting on the false claim
May 18, 2008 at 8:54 pm
‘.. I cannot lay claim to any credit that does not belong to me…’
My apology for the misunderstanding. I really thought that you agree with Justice Hamid Mohamad when you quote him.
Thank you for the compliment. Just want to set the record straight. The truth must be told!
Alhadee,
Truth be told, my contention is that the superior courts within the jurisdiction of Malaysia are the 2 civil High Courts, the Court of Appeal and the Federal Court. There are no other courts designated as superior courts. Period.
All other courts are below this first tier. As to how the other courts rank inter se is of little consequence to the ongoing debate.
My 2 sen
May 18, 2008 at 9:23 pm
‘..Truth be told, my contention is that the superior courts within the jurisdiction of Malaysia are the 2 civil High Courts, the Court of Appeal and the Federal Court. There are no other courts designated as superior courts…’
No doubt about it. Agreed!
‘..As to how the other courts rank inter se is of little consequence to the ongoing debate…’
Agreed. Just want to tell the truth to those who think so highly of this Kadi court. I don’t understand why they think so negatively of you. To me you are very diplomatic in your approach. If it was me, I would straight away tell them that these Syariah Court judges are actually 3rd class magistrate.
Perhaps they define Islam as total submission to the Mullahs. To me it is to Allah only. And Allah order me to tell the truth. Period.
All the best bro. May Allah protect you always.
May 18, 2008 at 9:57 pm
[...] post info By poopadrollypoop Categories: Religion, law and malaysia Tags: Islam, Lina Joy, Muslim, Religion, Siti Fatimah For those who loves and read legal reasoning, you will love this piece by Haris Ibrahim. [...]
May 19, 2008 at 6:42 am
http://mmfss.blogspot.com/2008/05/secular-state-limits-religion-hogwash.html
May 19, 2008 at 10:20 am
Why is it that those Muslims who, to me, demonstrate the most compassionate understanding of Islam, are rarely in any position to help define the true face of Islam?
I can only speculate that those in positions of power are there because they sought those positions. And those who seek power are the worst possible persons to whom power should be given.
This is the biggest weakness of democracy - that those who most actively seek leadership are often the most suspect. That is why proper checks and balances are so critical.
May 20, 2008 at 7:48 pm
Haris,
You may get a life bullet soon
May 21, 2008 at 11:55 pm
‘..You may get a life bullet soon..’
A threat or genuine concern malayamuda?
If this is a threat, I feel so sorry to you. This is not some backward 7th century where the Caliphs can chop people at his whims and fancies.
alhadee,
No threat, I’m sure.