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 21^st 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-à-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.

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[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).

[5] The Economist, above n.3.

[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.

[11] ‘Hudud’ is Islamic criminal law.

[12] [2016] 6 CLJ 562.

[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.

[14] Viran Nagappan v Deepa Subramaniam & Other Appeals [2016] 3 CLJ 505, 507-8.

[15] Ibid., at 508.

[16] [2017] 1 MLJ 436.

[17] [2015] 6 MLJ 751.

[18] [2016] 6 MLJ 352.

[19] [2001] 1 MLJ 321 (Federal Court).

[20] Ibid, [34].

[21] Ibid, [69].

[22] Ibid, [67].