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• Bar Council: Federal Constitution must remain supreme

The right guaranteed by Article 11 grants every person the freedom to choose, affirm, practise and profess the religion of his/her choice. This freedom of belief is (and must be) an unqualified freedom fully protected by the law. Any law that prevents or in substance curtails the exercise of this freedom must be struck down as being inconsistent with the Federal Constitution, and as being incongruous with such a fundamental freedom. Further, the religion that a person in fact professes must be the religion that that person states he or she professes; since there can be no evidential difficulty in ascertaining this in the case of a living person. Asserting this right, and upholding it, in no way undermines the position of any religion under the Federal Constitution and is consistent with the position of Islam under Article 3.

The Federal Constitution is, and must remain in law, supreme. In the event of any inconsistency or conflict between the provisions of State Enactments and of the Federal Constitution, the latter must prevail. The majority decision in the Lina Joy case pronounced yesterday runs counter to this position. In this decision, the express provisions of the Federal Constitution were made to give way to an interpretation of some form of implied jurisdiction of the Syariah Courts. It further clothed the National Registration Department with powers beyond that which was expressly provided for under the relevant legislation.

The implied jurisdiction approach runs contrary to the legal position that State law must confer on the Syariah Court express jurisdiction to deal with any matters stated in the State List. The majority decision has implied such jurisdiction in the absence of statutory provisions to that effect, which in any event must accord with the Federal Constitution in order to be valid. In short the majority of the Federal Court has also proceeded to “legislate”, (which the Courts are not permitted to do) and in a manner inconsistent with the Federal Constitution.

We support the minority judgment of Justice Dato’ Richard Malanjum HMP, who stated that,

“jurisdiction must be express and not implied. The doctrine of implied powers must be limited to those matters that are necessary for the performance of a legal grant. And in the matters of fundamental rights there must be as far as possible be express authorization for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.” (emphasis ours)

We must further heed the warning of the learned Judge that “… to rely on implied power as a source of jurisdiction would set an unhealthy trend.”

The Judgment further noted that it was unreasonable “to expect the Appellant to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law”. Little comfort is drawn from cases of those who wish to leave or change religion, who have faced criminal sanctions and most recently the case of Revathi in Malacca who was deprived of her liberty and access to her husband and minor child.

It is important that this minority Judgment be given careful consideration.

We are mindful that issues relating to religion will inevitably draw emotive responses. However in a multi-religious society like ours, Malaysians must be prepared to confront these issues maturely and dispassionately, and within the framework of our Federal Constitution as the supreme law of the land.

Finally, we would commend the approach of the late Tun Mohamed Suffian in such cases where he said,

“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.” (The Constitution of Malaysia - Further Perspectives and Developments).

Ambiga Sreenevasan
President
Malaysian Bar
31 May 2007

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