Constitutional Issues in Malaysia 2016
[This draft is of an IConn Blog entry, currently in press. It will be part of a series of national reports. I owe a huge debt to my doctoral student Wilson Tay, for his typically detailed and thoughtful text; as well as to Jaclyn Neo and Dian Shah for their great contributions. Thanks also to the blog editor Simon Drugda for the extension - we were a bit late getting this together. Wilson and I are already gathering material for next year's entry, i.e. on this year's developments, which will include the Semenyih case and no doubt an update on RU355].
IConn
Blog Entry: Constitutional Issues in Malaysia 2016
By
Jaclyn LC Neo, Dian AH Shah, Wilson TV Tay, and Andrew Harding,
National
University of Singapore
Readers will be aware
that Malaysia has since 1957 had a Constitution that is federal, and enshrines
constitutional monarchy in a broadly Westminster-style governmental structure.[1] In
1963 the Borneo states of Sabah and Sarawak joined the Federation under an
amended version of the 1957 Constitution. Some political background is needed
to understand the balance of this brief survey.
Since 1957 Malaysia has
been governed by the Barisan Nasional (BN, formerly Alliance) multi-ethnic
coalition, which until 2008 commanded at least the two-thirds’ majority in
Parliament required for most constitutional amendments, and was thus able to
manipulate the Constitution according to its own desires. Since 2008 the
political system is best described as two-party, with two coalitions (BN and
Pakatan Rakyat) each commanding around half of the votes in the general
elections of 2008 and 2013. The BN retains power having won a majority of seats
in Parliament, despite securing fewer votes than the opposition in the 2013
elections.[2] A
measure of Islamicisation of the legal system has proceeded since the dawn of
the 21st century. Article 3 of the Constitution provides that Islam
is the religion of the Federation.
Controversy
I: Kleptocracy
The year 2016 was
overshadowed by a non-constitutional-event, namely the abject failure to secure
any meaningful accountability of the Prime Minister (PM) in respect of the
financial scandal surrounding the development corporation 1 Malaysia
Development Berhad (1MDB). The PM has never given convincing or consistent explanations
for the US$681 million that passed through his personal bank account, nor of
the RM42 billion missing from 1MDB.[3] By
the beginning of 2016 every form of political and legal accountability in respect
of this scandal had been blocked, and the Attorney-General (AG) had been
summarily sacked when it appeared he was pursuing criminal charges against the
PM.[4] The
year 2016 continued this sorry saga in the same vein, despite the incremental
accretion of evidence resulting from investigations in the United States,
Singapore, and Switzerland, implicating the Prime Minister and people close to
him.[5]
These events cast a
pall over a set of institutional arrangements established under a constitution
that signally failed to perform their task. In addition, and relatedly, 2016
saw a further reversal of reforms carried out during 2011-13, as the PM moved
to suppress criticism and displays of dissent.[6]
One development arising
from this constitutional blockage was that public opinion turned to the
traditional Rulers, the nine Malay Sultans, looking for a resolution of the
scandal. The Rulers sit in a Conference of Rulers that has some limited
constitutional powers that include the power to make pronouncements on state
policy. They issued a statement asking for accountability and an explanation
from the Prime Minister. Even this initiative the Prime Minister was able to
ignore with apparent impunity, despite the high social and political standing
of the Rulers.[7]
In January 2016 a new
Attorney-General (AG) declared the Prime Minister innocent of any wrong-doing
in the 1MDB issue. This event was followed by a lively and instructive debate
as to the role of the Attorney-General, with the Bar Council challenging the
dismissal of the previous AG, disputing the appointment of the new AG, and the
latter’s clearing of the PM, as well as arguing that the AG had in any event no
power to make a declaration of this kind.[8]
In the wake of this
decision, there was some interest in the question whether the AG’s discretion
to refuse to prosecute could be reviewed. In March the Malaysian Bar filed a
judicial review action challenging the AG’s decision to exonerate the PM.[9] The
courts in Malaysia have always granted the AG an almost completely unfettered
discretion whether to prosecute or discontinue a case.[10]
Controversy II: Punitive Powers of Syariah
Courts
On 6 April 2017, the
Federal Parliament witnessed the tabling of a controversial Bill to increase
the punitive powers of the syariah (i.e., shari’a) courts. Public debates about
the Bill had been ongoing for almost two years, triggered by the Kelantan State
Assembly’s unanimous approval to amend the state’s Syariah Criminal Code. The
amendment introduced a range of Islamic criminal law punishments in the state
(including amputation for theft offences and stoning for adultery or same-sex
sexual conduct), but these could not be implemented because of the limitations
set by the 1965 Syariah Courts (Criminal Jurisdiction) Act. This federal-level
law only authorizes Syariah Courts to impose a maximum of three years
imprisonment, fine not exceeding Ringgit Malaysia (RM) 5000, and/or six strokes
of the cane. To pursue the implementation of Kelantan’s Syariah Criminal Code,
the opposition Islamic party, PAS, which governs Kelantan, pledged to table a
private member’s bill to amend the 1965 Act.
When the Bill was first
mooted, the amendment was designed in such way as to allow Syariah Courts to
impose any punishment mandated by
Islamic law other than the death penalty. This broad construction was later
changed. When the Bill was tabled, it sought to raise the limits of existing
punishments to 30 years jail, a maximum fine of RM 100,000, and/or 100 lashes.
For proponents of the Bill, therefore, the amendment would merely increase the upper limits of Syariah
punishments. They have largely refrained from using the term ‘Hudud Bill’[11] (a Member of Parliament who
supported the Bill argued in Parliament that the Bill had nothing to do with
Hudud), focusing instead on their desire to ‘empower the Syariah Courts’, and
prevent personal sins and moral degradation among Muslims. The call for support
was aimed to strike at the religious sentiments of Muslims, but this was also
laced with other economic and political rhetoric. For instance, it was
emphasized that Muslims had a duty to unite to safeguard the dignity of Islam
as the majority religion (and the religion of the Federation) and that Muslim
judges within the syariah branch deserved an equal status (and thus, equal
remuneration) with their counterparts in the civil branch. As it stands, the
sentencing jurisdiction of the lowest court in the civil court hierarchy is
capped at a maximum of five years’ jail, twelve strokes of the cane, and fines
of up to RM 10,000.
The Bill’s
constitutionality continues to be a subject of great debate. In particular, the
possibility of disproportionate punishments for personal sins and victimless
crimes and the implementation of such punishments on Muslims, raise questions
about the rights to equality and equal protection. Although the ruling party
(UMNO) has pledged to support the Bill, its progress through Parliament has
been a mixed success. In May 2016, the government suspended its order of
business to pave way for Abdul Hadi Awang (PAS President) to table the Bill,
but he asked for a postponement until the next parliament sitting. Throughout
October and November 2016, the Bill was tabled twice but it was never debated. The
Bill’s fate remains uncertain and public debates about its constitutionality
and propriety continues to divide a multiracial and multi-religious society.
Major Cases
1) Apostasy and the Jurisdiction of the Syariah
Courts
In Azmi Mohamad Azam v Director of Jabatan Agama Islam Sarawak and Others,[12] the High Court of Sabah
and Sarawak examined the longstanding questions surrounding the formalities of
renunciation of Islam and the jurisdiction of the syariah courts in apostasy
cases. The applicant renounced Islam to
embrace Christianity, and he sought to change his name and remove the word
‘Islam’ from his national identity card. His request was rejected by the
National Registration Department (NRD), who insisted on a letter from the State
Islamic Department and a court order confirming his ‘release’ from Islam. When
he approached the Sarawak Islamic Department (Limbang branch), he was told that
the department could not assist him and was asked to make an application before
the Syariah Court. The Syariah Court did not formally hear his case, but the
Chief Syariah Judge issued a letter informing the Applicant that the court had
no jurisdiction to issue the certificate of apostasy. He then proceeded to the
Civil Court for relief, seeking, among others, a mandamus order to compel the NRD to change his name and remove the
word ‘Islam’ from his identity card.
The High Court judgment
in favour of the Applicant is significant for two reasons. The first concerns
the jurisdictional boundaries of the Syariah Court. The Court accepted the
settled principle that apostasy issues must be determined according to Islamic
law, and although the Syariah Court Ordinance 2001 and the Majlis Agama Islam
Sarawak Ordinance 2001 bore no provision regulating apostasy, the Court argued
that the jurisdiction of the Syariah Courts can be implied. However, the Court in this case focused heavily on the
constitutional right to religious freedom, when it could have ruled that the
matter before it should be decided by the Syariah Court. The Court considered
religious freedom to be the ‘most inalienable and sacred of all human rights’,
and accordingly the right to choose one’s own religion should not be subject to
Syariah Court approval. In addition, the Court determined that the Syariah
Court only has jurisdiction over persons professing
the religion of Islam, and the Applicant – by virtue of being a practising
Christian – could no longer be said to ‘profess’ Islam.
Although the Court took
pains to distinguish the present case from previous decisions concerning
apostasy,[13]
this decision is a welcome approach to deciding important constitutional
questions, which is rightly under the purview of the Civil Courts.
2) Child Conversions and Custody Battles
These cases continued to
be at the centre of debates on Malaysian constitutional law in 2016,
particularly in light of the decision in Viran
Nagappan v Deepa Subramaniam & Other Appeals [2016] 3 CLJ 505, the
court considered two principal questions: (1) whether a Civil or Syariah Court
had jurisdiction – in the context of Article 121(1A) of the Constitution – to
make conflicting custody orders; and (2) whether a civil court could make a
recovery order in light of an existing (and enforceable) custody order by the
Syariah Court. The Muslim father in the syariah court and the non-Muslim mother
in the civil court were both granted custody of their two children. The son,
however, was taken away by the father, prompting the mother to obtain a
recovery order from the High Court. On appeal, the father argued that the civil
courts had no jurisdiction over the dissolution of his marriage or over the
custody of the children because he is a Muslim, bringing these issues within
the jurisdiction of the syariah court.
In a unanimous judgment,
the Federal Court held that the conversion of one spouse to Islam does not
strip the civil courts of jurisdiction in matters of divorce and custody. On
the issue of conflicting orders, however, the Federal Court exercised more
restraint. Although the court recognized that the syariah court had no
jurisdiction to grant custody order in favour of the father (it also added that
the father’s application before the syariah court was an ‘abuse of process’),
it nevertheless granted that the syariah order was a valid
order until it was set aside.[14] The
existence of conflicting custody orders also precluded the High Court from
entertaining the mother’s application for a recovery order of her son.
The
outcome of this decision is thus a curious one, posing practical issues for law
enforcement officers faced with conflicting court orders.[15] The
court’s approach could be seen, in one respect, as a step forward, given its
decision that conversion to Islam does not automatically dissolve a non-Muslim
marriage and preclude the civil courts’ jurisdiction. Yet, its affirmation that
the syariah court’s custody order in favour of the husband (which preceded the
civil court’s order in favour of the mother) was valid, could be seen a step
backward, as it appears to have implicitly legitimized the recalcitrant
husband’s disregard of the civil court order.
3)
Non-Muslims not Allowed to become Syariah Practitioners
In Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin [2016]
MLJU 40, the question that arose for determination in the Federal Court was
whether a non-Muslim possessing the requisite academic and professional qualifications
could be admitted as a syariah practitioner. The Islamic Religious Council
(Majlis Agama Islam) of the Federal Territories had declined to process the
plaintiff/ respondent’s application on the basis that as a Christian, she did
not fulfil the requirement to be admitted as a syariah practitioner. The
plaintiff sought judicial review, partly on the ground that the rule requiring
syariah practitioners to be Muslims is in contravention of Articles 8(1) and/or
8(2) and/or Article 5 and/or Article 10(1)(c) of the Federal Constitution.
In allowing the Majlis’
appeal and dismissing the application for judicial review (which had succeeded
before the Court of Appeal), the Federal Court held that Article 8 (the
equality clause) permits discrimination on the basis of ‘reasonable or
permissible classification’, and that was what had occurred. The Federal Court
observed that a syariah court, like any other court, must be able to enforce
its laws and rules against its practitioners when necessary, and in this case
it could not legally do so as the plaintiff is a non-Muslim. Moreover, from the
syariah perspective, faith is important and the plaintiff’s non-Muslim faith
would be an impediment to her duty to assist the syariah court in upholding
syariah law (para 51). Further, the plaintiff was not being deprived of her
livelihood contrary to Article 5(1) (the right to life and personal liberty),
as she could still practice as an advocate before the civil courts, and was
indeed doing so. The challenge based on Article 10(1)(c) (the right to freedom
of association) was also rejected, as that provision refers only to the right
to form associations, not the right to be part of any existing association of
one’s choosing. In view of these, it was held not unconstitutional for the
relevant religious body such as the Majlis to stipulate that only Muslims can
be syariah practitioners.
4)
Constitutionality of the Sedition Act
The case of Mat Shuhaimi bin
Shafiei v Kerajaan Malaysia[16]
is significant both for the Court of Appeal’s declaration that a key provision
in the Sedition Act is unconstitutional and for its application of the
proportionality test to determine constitutionality of laws vis-Ã -vis
fundamental liberties. According to the Court of Appeal, the proportionality
test is now an entrenched part of Malaysian constitutional law and, as the
Federal Court (the highest court in Malaysia) opined in Public Prosecutor v
Azmi bin Sharom,[17] the
test is encapsulated within the equality provision (Article 8) in the Federal
Constitution. The proportionality test is particularly relevant where
the law implicates a fundamental liberty/ right that is not absolute but
qualified, as in the case of freedom of speech, guaranteed to citizens under
Article 10 of the Constitution.
Malaysia’s Sedition Act makes it an offence to say or publish matters
with a seditious tendency. Seditious tendency is broadly defined as:
(a)
to bring into hatred or contempt or to excite
disaffection against any Ruler or against any Government;
(b) to excite
the subjects of any Ruler of the inhabitants of any territory governed by any
Government to attempt to procure in the territory of the Ruler or governed by
the Government, the alteration, otherwise than by lawful means, of any matter
as by law established;
(c)
to bring into hatred or contempt or to excite
disaffection against the administration of justice in Malaysia or in any State;
(d) to raise
discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or
of the Ruler of any State or amongst the inhabitants of Malaysia or of any
State;
(e)
to promote feelings of ill will and hostility
between different races or classes of the population of Malaysia; or
(f)
to question any matter, right, status,
position, privilege, sovereignty or prerogative established or protected by the
provisions of Part III of the Federal Constitution or Article 152, 153 or 181
of the Federal Constitution.
While the Federal Court upheld the offence-creating provision (section
4) of the Sedition Act in its earlier decision in Azmi bin Sharom, the Court of Appeal opined in Mat
Shuhaimi that this did not preclude it from determining the
constitutionality of section 3(3) of the Act. Section 3(3) deems irrelevant the
intention of the person charged at the time he spoke or committed any act
producing the seditious material for the purposes of establishing the offence.
This, as the Court highlighted, puts the issue of the accused person’s
intention beyond judicial consideration. While the Court appears to countenance
this as falling within one of the permissible objectives for restricting
freedom of expression in Article 10, it nonetheless stated that the provision
making intent an irrelevant element of the offence disproportionately restricts
freedom of expression and therefore violates the equal protection clause. The
provision was declared invalid. The upshot of this is that sedition remains an
offence in Malaysia but is no longer a strict liability offence.
While this decision is
undoubtedly to be welcomed, it is suggested that the Court of Appeal had not
adequately dealt with the issue that was raised of the Sedition Act being
enacted in 1948 before the Federal Constitution of 1957 came into existence.
Article 4(1) of the Constitution only provides that ‘any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent
of the inconsistency, be void’. Technically, it is questionable whether any
provision exists in the Constitution for the Court of Appeal to have granted
the declaration in the terms sought by the plaintiff (see para 45). The
appropriate provision that the Court could have relied on in reaching its
conclusion is Article 162(6), which provides that ‘any court or tribunal
applying the provision of any existing law which has not been modified on or
after Merdeka Day … may apply it with such modifications as may be necessary to
bring it into accord with the provisions of this Constitution’. ‘Modification’
is defined in Article 162(7) as including amendment, adaptation and repeal. It
is submitted that the Court could have made reference to Article 162(6) and
162(7), declared section 3(3) to be inconsistent with Articles 10(1) and 8(1),
and declared the offending provision repealed under Article 162(6). While the
declaration actually granted can no doubt still be interpreted or elaborated in
these terms, the concern is that a more executive-minded panel of the Federal
Court (or even a subsequent Court of Appeal) may seize on the ambiguity to
deprecate the important conclusions reached in Mat Shuhaimi bin Shafiei.
5)
Preventive Detention
The case of YB Teresa Kok Suh Sim v Menteri Dalam
Negeri, Malaysia, YB Dato’ Seri Syed Hamid bin Syed Jaafar Abar & Ors[18]
is
significant not just for reaffirming the objective review test for arrests and
detentions under Malaysia’s internal security laws (which allow for preventive
detention), but for holding that this standard of review is also applicable in
determining whether an unlawful arrest gives rise to compensation.
The facts giving rise
to the case were politically charged. The appellant, a Member of Parliament, was
arrested by the police. She was subsequently informed that she was being arrested
and detained under the (subsequently repealed) Internal Security Act 1960 (ISA).
During her one-week detention, the appellant alleged that she was continually
held in solitary confinement, lived under inhumane conditions, was deprived of
all her constitutional rights, and was not allowed reasonable access to her
lawyer or her family members. She was later released and the Deputy Inspector General
of Police issued a formal press statement that her release was unconditional
because ‘the police was satisfied that she was not a threat to public order and
security’.
While affirming the
Federal Court’s earlier decision in
Mohammad Ezam Mohd Nor & Ors v Inspector General of Police[19] to apply an objective test specifically
to section 73(1), ISA, empowering police arrests and detentions without warrant,
the Court of Appeal also reaffirmed the general proposition that in any
challenge to an administrative action or act, the courts are entitled to
‘objectively scrutinize’ the exercise of power to see whether there exist
reasonable grounds for the act or decision. This is notwithstanding any subjective formulation in the power conferring
statute.[20]
The earlier case of Mohammad Ezam arose
from an application for a writ of habeas corpus. The Court of Appeal nonetheless held that the same objective test
applied in determining a civil claim for damages for wrongful arrest and
detention. Applying this test, the Court of Appeal adjudged that the police had
‘failed to show the court credible and sufficient material to establish that
the arresting officer … had reasonable and substantive grounds to support their
belief that the arrest of the appellant was urgently required to meet the ends
[prescribed under the statute]’.[21]
As the Court noted, the allegations were made several months before the arrest
and therefore there was no immediate or imminent act or live threat that
justified the use of the powers to arrest and detain without a warrant. There
was also no attempt by the police to conduct preliminary investigations into
the allegations before the arrest. Indeed, the Court of Appeal called into
question the motives for the arrest and opined that they appeared to be for ‘a
collateral or unrelated ulterior motive’.[22]
Consequently, the Court held for the appellant and granted not only general
damages but also aggravated and exemplary damages against the police.
This decision is to be
welcome as it ensures that executive action must be exercised lawfully, and
that even though recourse to the courts for release may have been overtaken by
events (e.g. release after a period of detention), a further disciplining tool
exists in the form of civil compensation.
Conclusion
It is impossible to
claim that 2016 has been an encouraging year for the constitution and
constitutional law. Yet, even if political constitutionalism and democratic
institutions appear under threat (as they are in many places where they were
thought quite secure) some cases in the courts show that there is still a
judiciary whose decisions may on occasion support fundamental rights and
constitutional values, even if they do so in an inconsistent and sometimes
problematical manner.
[1] For an
introduction, see AJ Harding, The
Constitution of Malaysia: A Contextual Analysis (Oxford: Hart Publishing,
2012).
[2] ‘Malaysia Vote: PM
Najib Razak’s Barisan Nasional Wins’, BBC, 6 May 2013, http://www.bbc.com/news/world-asia-22422172 (accessed 24 April
2017).
[3] The Economist, ‘Malaysians
Underestimate the Damage Caused by the 1MDB Scandal’, http://www.economist.com/news/leaders/21710820-opposition-has-do-more-win-over-rural-malays-malaysians-underestimate-damage (accessed 24 April
2017).
[4] ‘Malaysia’s
Attorney-General Clears Najib of Corruption over Cash Gift from Saudi Royals’,
The Straits Times, 27 January 2016, <http://www.straits> (accessed 24 April
2017).
[6] See, e.g., ‘Critic
of Najib Razak, Malaysian Leader, Gets Prison for 1MDB Disclosure’, https://www.nytimes.com/2016/11/15/world/asia/malaysia-rafizi-ramli.html?_r=0Najib
criticism
(accessed 24 April 2017).
[7] ‘Rulers Want 1MDB
Issue Settled’, The Star, 6 October 2016, http://www.thestar.com.my/news/nation/2015/10/06/rulers-want-imdb-issue-settled/ (accessed 24 April
2016).
[8] ‘The Malaysian Bar
to Appeal to High Court Decision
Regarding Judicial Review of the Exercise of the Attorney-General’s Powers’,
Bar Council Press Release, 15 Nobember 2016,
http://www.malaysianbar.org.my/legal/general_news/press_release_%7C_the_malaysian_bar_to_appeal_high_court_decision_regarding_judicial_review_of_the_exercise_of_the_attorney_generals_powers.html (accessed 24 April
2017).
[9] Ibid.
[10] Johnson Tan Han
Seng v PP [1977] 2 MLJ 66 (FC); Poh Cho Ching v Public Prosecutor [1982]
1 MLJ 86; Rosli bin Dahlan v Tan Sri
Abdul Gani bin Patail & Ors [2014] MLJU 581.
[13] Lina Joy
v Majlis Agama Islam Wilayah Persekutuan & Another [2007] 4 MLJ 585); Hj. Raimi bin Abdullah v Siti Hasnah Vangarama binti Abdullah [2014]
4 CLJ 253.
[15] Ibid., at 508.
[17]
[2015] 6 MLJ 751.
[19] [2001] 1 MLJ 321
(Federal Court).
[20]
Ibid, [34].
[21] Ibid, [69].
[22] Ibid, [67].
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