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Wednesday, June 10, 2009

Discussing Islam's position under the Malaysian Federal Constitution

Moving forward to strengthen the position of Islam UNDER the Federal Constitution

by

Hj. Mohamed Haniff Khatri Abdulla1

Hj. Abdul Rahim Sinwan2

Azril Mohd Amin3

This paper intends to discuss the position of Islam within the Federal Constitution with regards to matrimonial disputes involving non-Muslim couples, married under the civil law, wherein one of the spouses converts to Islam. It will be proposed throughout this paper that the approach in resolving the nature of these disputes shall be by applying the necessary Syariah principles through the Syariah Court system, as opposed to the Civil law system. It will also be proposed that this approach is within the literal as well as spiritual intent of our Federal Constitution.

The first reference made would be Article 3 (1)4 of the Federal Constitution, wherein Islam is stated as the religion of the Federation, but other religions may be practiced in peace and harmony in any part of the Federation. It is submitted that the phrase “Islam is the religion of the Federation” is not a symbolic statement. The Federal Constitution is not written for the purpose of a mere declaration.

The Constitution is written in order to be given life. It is an organic document which needs to be interpreted, applied and set to administer and serve the evolving needs of our society. It is a declaration and intention of the constitution of our country, that Islam as the religion of the Federation must be applied whenever permissible and applicable to allow Muslims to be governed by their Islamic laws. It should be noted, that this provision found in Article 3(1), is in no way against the rights of the non-Muslims of our country to practice their own religion pursuant to Article 11(1).

The real meaning and application of Article 3(1) has been clarified on various occasions by our courts. First and foremost, the High Court decision in Meor Atiqulrahman v Fatimah Sihi and others5, reported in 2000, wherein the then Justice Mohd Noor Abdullah stated;

Islam ialah ugama bagi persekutuan tapi ugama-ugama lain boleh diamalkan dalam aman dan damai. Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di negara seperti Kristian, Buddha, Hindu. Islam bukan setaraf dengan ugama lain. bukan duduk berganding bahu dengan agama lain atau berdiri sama sama tegak. Ia duduk di atas, berjalan dahulu, terletak di tempat medan, dan suaranya lantang kedengaran. Islam ibarat pokok jati. Tinggi, teguh, dan terang. Jika bukan sedemikian, Islam bukanlah ugama bagi persekutuan, tetapi adalah salah satu di antara beberapa ugama yang dianuti di wilayah ini, dan setiap orang sama-sama bebas mengamalkan mana-mana ugama yang dianuti. Tiada lebih di antara satu sama lain.”

This decision of the High Court undeniably was overruled by the Court of Appeal and thereafter by the Federal Court. However, that above-quoted portion of the High Court judgment was never reversed or expunged. In fact the decision of the Court of Appeal and the Federal Court was based on some other issues independent to the position of Islam vis-à-vis Article 3(1).

Then Abdul Hamid, the Federal Court Judge decided the issue in that case6, i.e. whether or not a Muslim boy can wear the serban to school, on his finding as to whether wearing a serban is a prescribed sunnah under the Islamic principles. His Lordship on his own volition and conclusion decided that wearing a serban is not a prescribed sunnah. Hence he decided that it was not a religious duty or obligation under any Islamic principles for a Muslim boy to put on a serban to school. In no way did the Federal Court (and even the Court of Appeal) decide that the High Court judgement on the position of Islam vis-à-vis article 3(1) was incorrect. In fact, the very reason that the Federal Court had to go into its own finding as to whether wearing a serban is a sunnah or not itself, is opined, is due to the recognition of the Federal Court as to the position of Islam under article 3(1).

Secondly, even in the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan7, the then Chief Justice, Yang Amat Arif Tun Ahmad Fairus said:

“Islam itu bukan sahaja suatu himpunan dogma-dogma dan ritual-ritual tetapi ianya juga suatu cara hidup yang lengkap merangkumi semua bidang aktiviti manusia, persendirian dan awam, perundangan, politik, ekonomi, sosial, budaya, moral atau kehakiman etc”

In fact, his lordship found strength on the position of Islam by referring to a portion of the controversial decision of Che Omar bin Che Soh vs PP8, in which case even Tun Salleh Abbas in a portion of that judgment did recognize that Islam is a complete way of life. However, Tun Salleh Abas, unfortunately then went on to make certain glaring errors in his judgment which shall be addressed later in this discussion.

In order to further understand this topic in question, it must be approached by way of posing certain questions.

FIRST QUESTION

Firstly, if the position of Islam as the religion of the Federation is to be taken in the position as discussed earlier herein, would that make our Constitution an Islamic Constitution, or would it be made a secular constitution? The answer is: it is neither. It is a hybrid Constitution which allows Muslims what Islam requires them to practice where there are clear principles of Syarak confirmed by learned Islamic scholars. This means, that a Muslim has the undisputed right to demand and claim the government authorities to allow him/ her to be administered by hukum syarak, where there is a clear Islamic principle on that issue.

It would be timely now to refer to an article written by Muhammad Imam in 1994 with regards to the meaning and intent of Article 3(1) which is as follows9:

Article 3 (1) is not a mere declaration. But it imposes positive obligation on the Federation to protect, defend, promote Islam and to give effect by appropriate state action, to the injunction of Islam and able to facilitate and encourage people to hold their life according to the Islamic injunction, spiritual and daily life.”

SECOND QUESTION

Coming back to the topic under discussion it would be timely to pose a second question, which is, are there recognized specific Islamic principles pertaining to matrimonial disputes in relation to a non-Muslim couple wherein one spouse converts to Islam? The answer to this question is in the affirmative.

Islamic scholars have provided sufficient guidance with regards to the various principle of Islam (hukum syarak) in this area of dispute, and some of the undisputed principles are as follows:

In a situation involving a non-Muslim marriage, where one of the spouse converts to Islam, their marriage automatically dissolves upon the expiry of the iddah period, if the other spouse does not convert to Islam. [Al-Mumtahanah: 1010.]

In a situation, where the wife does not convert into Islam following her husband, upon the expiry of the iddah period she shall then lose the right to claim maintenance from her converted husband, unless she is pregnant, in which latter event her maintenance shall be provided for until the delivery. [Ath-Thalaaq: 6.11]

In such a situation of conversion by one spouse, the husband still bears the responsibilities of sustaining the children until the age of majority. [Al-Baqarah: 233.12]

Also, in relation to conversion into Islam by one spouse, the religion of the children below the Muslim age of majority is automatically considered to be a Muslim upon the conversion of one of the spouse. The authors are guided by Tan Sri Syeikh Ghazali Abdul Rahman with regards to the necessary dalil on this issue as reported in Berita Harian 15th May 2009,wherein Tan Sri Syeikh Ghazali Abdul Rahman13 referred to the dalil in [Al-Thur: 2114] which answers this situation as follows:

“Dan orang yang beriman dan diikuti oleh zuriat keturunan mereka dalam keimanan, Kami hubungkan zuriat keturunan itu dengan mereka (di dalam syurga) dan Kami tidak mengurangi sedikitpun daripada pahala amalan mereka. Setiap manusia terikat dengan amal yang dikerjakan.”

The above quoted dalil has been taken by Mazhab Syafie15 as a strong dalil pertaining to the automatic conversion of the children below the Muslim age of majority where one of the spouse converts to Islam.

Hence to conclude the answer to the second question posed hereinabove, it is beyond doubt that there are confirmed Islamic principles (hukum syarak) on these issues in dispute. Hence it is the undeniable right for the Muslims to insist that they be governed by these Islamic principles, which of course in the nature of this dispute would be with the non Muslim. In fact all of the above stated principles clearly cater for such a situation of conversion into Islam by a non Muslim under a civil law marriage. And it is in this scenario the authors would state that the Muslim can demand the Federation to allow him to be governed by Islamic principles despite the other party being a non Muslim.

THIRD QUESTION

This discussion will not be complete without answering a third question herein which is as follows. Is there any remedy available for non Muslims under Islamic principles?

Again it is undeniable and guided by Islamic scholars that a non Muslim retains the right to various remedies even by the importation of Islamic principles in the resolution of these disputes.

There are sufficient dalils to state that a non Muslim spouse could still claim custody of his/ her children even though the child upon conversion of one of the parents becomes a Muslim. Of course the non Muslim parent would as required even from the Muslim parent, put forward his or her case as evidence to support the claim. The judge would then have to decide based on the facts and evidence and in appropriate cases can grant custody of the Muslim children to non Muslim parent. Hence the argument by opponents to this view that there is no remedy available for a non Muslim under Islamic law (hukum Syarak) holds no water at all.

The fault of the misconception that there is no remedy available to the non Muslim under the Islamic law to a large extent lies on us the Muslim community. One should ask, to what extent has the necessary authorities, scholars, Muslim groups or even Muslim individuals has done to disseminate correct information of Islam and Islamic principles to our non Muslim, (and to a certain extent even to our Muslim brothers) as to the existence and availability of such remedies for the non Muslims. Had we been efficient on this issue over the 50 odd years of independence would it not have helped elevate the fear among the non Muslims in seeking to address their grievances under the Islamic principles (hukum syarak) in the Syariah courts?

FOURTH QUESTION : WHAT ABOUT SCHEDULE 9 LIST 2 PARA 1?

The authors would stress that there is a certain portion within our constitution which would appear to be in contradiction to Article 3(1). That provision is Schedule 9 List 2 para 1. A reference to this provision which is a schedule, as opposed to a main article will show that we have closed our own doors to non Muslims, in direct opposition to the Islamic principles. As already discussed earlier it is a duty of the Islamic court to determine a dispute involving overlapping rights between Muslims and non Muslims, especially in this area of matrimonial dispute. Hence it would appear that strict compliance or adherence to Schedule 9 List 2 para 1, i.e. confining the jurisdiction of the Syariah courts where both parties are Muslims in itself is in opposition to the Islamic law (hukum syarak) and therefore ultra vires to Article 3(1) of the Federal constitution.

This problematic content of Schedule 9 List 2 para 1 has been translated as a pre condition into the various State enactments governing the jurisdiction of the various State Syariah courts. Is it fair for us to preach about allowing the Muslims to be governed by the Islamic principles in this area of dispute and yet shutting the door into the face of the non Muslims from coming to the Syariah Courts? Not only it is unfair, it is also clearly unconstitutional.

The Constitution must be amended to remove this limitation from Schedule 9 List 2 para 1, especially in the area where the dispute concerns the overlapping rights between the Muslims and non Muslims. Thereon the necessary provisions in the State Enactments pertaining to this limitation of the right of the non Muslims to appear before the Syariah court must also be removed.

Schedules to a Constitution which are inconsistent or clearly disharmonious with the main Articles in a Constitution are ultra vires. The authority for this proposition can be found in the judgment of Yang Amat Arif Richard Malanjun CJ Borneo in the Federal Court case of Lina Joy, when Yang Arif Richard Malanjun declared Legislative Lists in Schedule 9 of the Federal Constitution16 is ultra vires to the constitution. (Para 52 & 53)

    Just as any legislation or any part thereof will be struck down if it fails to conform with any of the provisions of the Constitution so too with administrative, departmental and executive discretions, policies and decisions. In other words they too must not infringe any of the provisions of the Constitution. (See: PP v. Su Liang Yu [1978] 2 MLJ 79; Madhavan Nair v. PP [1975] 264). In addition, administrative, departmental and executive discretions, policies and decisions must also be within the ambit of the enabling legislations otherwise they too will be struck down for being ultra vires the legislations. (See: Ghazali v. PP [1964] 30 MLJ 159). Of course it goes without saying that the enabling legislation must also be in conformity with the provisions of the Constitution. (See:PP v. Mohamed Ismail (supra)).

    In order to supervise and monitor the exercise of administrative, departmental or executive discretions our courts have followed with modifications where necessary the legal principles pronounced by the courts in other common law jurisdictions. For instance, to be valid administrative, departmental or executive discretions must not suffer any of the three categories of legal infirmities, namely, illegality, irrationality and procedural impropriety. (See: CCSU v. Minister for the Civil Service [1984] 3 All ER 935; Persatuan Aliran Kesederaran Negara v. Minister of Home Affairs [1988] 1 MLJ 442).”

FIFTH QUESTION

It would now be timely to pose a fifth question in this discussion, which is: Can the nature of this matrimonial dispute on conversion of a spouse be resolved by amending the necessary provisions of the Law Reform Act (LRA) inclusive of section 51,17 to compel the Muslim spouse to put up his or her claim pursuant to Civil law in the Civil Courts? The answer to this question is simple; if we were to do that i.e. to amend the LRA in order to compel the Muslims to take these disputes to the Civil Courts, it would be depriving the Muslims from insisting their right under article 3(1). Hence such proposed amendments to the LRA would clearly be ultra vires article 3(1) of Federal Constitution.

It would also be shambolic to do so in the light of the fact that the position of Islam during our colonial times and at the time of the inception of the Federation had always recognized and maintained application of Islamic law to the Muslims. Dato’ Hishamuddin Yunus18 in his article published in the Current Law Journal had very lucidly gone through the various treaties and laws passed by the British over the period of time governing their relationship in the Federated Malay States, Unfederated Malay States and even in the proposed Malayan Union in which the British had always maintained the position of Islam as the local law to be applicable to the Muslims and to be administered as an independent and separate system of law parallel with the laws passed by them. One need not go further than in the famous case of Laton binti Malim Sultan and Ramah binti Taat 192719, wherein Justice Thorne J had pronounced that Islamic law is a local law of this land which the normal courts must take judicial notice of the same. Hence how would one be able to argue that 50 years after our independence we need to push back the position of Islam backwards, far back from what it was even during colonial times. Surely by doing so the whole purpose and intent of the amendments to Article 121 (1A)20 would be defeated and sacrificed. Before the authors goes on to the other point in this discussion it is pertinent to note that the application of the actual Islamic principles (hokum syarak) can be found in various old Islamic enactments, which do not necessarily appear in the current Islamic enactment. As an example the old enactment of Undang-undang Pentadbiran Agama Islam Negeri Selangor No.3 Tahun 195221 provided for the confirmation that children out of a non Muslim marriage will automatically be confirmed to be Muslims upon the conversion into Islam of one of the spouse. It is a mystery as how these provisions which were in accordance with our actual Islamic principles have been eroded over the period of time to the extent that the current the Enactments prescribed for the converting parent to further carry out by conversion of the children, i.e. the children are not automatically Muslims. It is feared that if this trend is not put to a halt then we may find the position of Islam under Article 3(1) become illusory.

SIXTH QUESTION

Sixthly, is the Civil law marriage a contract, and if it is so should not the dispute between the parties upon conversion to Islam by one spouse be governed by the Civil law? The answer to the above question would require one to familiarize oneself with all the principles existing in the law of contract which includes the principles of frustration. In contract, the happening of a supervening event can determine the relationship of parties to a contract and cease the operation of the terms of contract agreed upon between the parties thereafter. Similarly, if Civil law marriage is a contract, then conversion of one spouse into Islam is the supervening event causing the frustration of the contract. Therefore, as night follows day, the non Muslim spouse cannot hold the converting spouse to be bound to the terms of the Civil law marriage.

SEVENTH QUESTION

What about the decision of the case of Che Omar?

On 29.2.1988, a corum of five members of the Supreme Court set to hear an appeal against the mandatory death sentence passed against the Appellants therein, who were charged under the drug trafficking offence and the Fire Arms (Increased Penalty) Act, respectively.

In the course of dismissing the respective appeals, wherein it was argued that the imposition of the death penalty on these offences, not being “hudud” or “qisas” according to Islamic Law, is contrary to Islamic injunction and is therefore unconstitutional vis-à-vis Article 3(1) of FC, His Lordship Tun Salleh Abas, LP had correctly in the initial portion of his judgment defined the meaning of “Islam“ or “Islamic religion” in Article 3(1), of FC, at pages 55-56 as follows:

    “The first point to consider here is the meaning which could be given to the expression “Islam” or “Islamic religion” in Article 3 of the Constitution. If the religion of Islam in the context means only such acts as relate to rituals and ceremonies, the argument has no basis whatsoever. On the other hand, if the religion of Islam or Islam itself is an all-embracing concept, as is normally understood, which consists not only the ritualistic aspect but also comprehensive system of life, including its jurisprudence and moral standard, then the submission has a great implication in that every law has to be tested according to this yardstick.

    There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all field of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial…”

Even though His Lordship had correctly defined the meaning of “Islam” or “Islamic religion”, His Lordship made two grave errors in the rest of his judgment, which had erroneously limited the actual scope and effect of Article 3(1) FC, the errors of which are as follows:

First, His Lordship had wrongfully and unnecessarily posed a question to be answered that “was this (his earlier definition of “Islam” or “Islamic religion”) the meaning intended by the framers of the Constitution?

Second, His Lordship, then, in answering his self posed question, and upon the summarisation of the “history” of Islam pre-merdeka then wrongfully concluded at page 56:

    “Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only…”

There was no necessity for His Lordship, upon defining the meaning of “Islam’ and “Islamic religion” to then ask the question as framed above for reasons as follows:

It is trite, in constructing and interpreting meaning of a word used in the Constitution, the ordinary meaning of the word must be applied, unless there is clear ambiguity. The definition of the meaning of “Islam” and “Islamic religion” as His Lordship correctly made in above does not leave any room for ambiguity. Hence, there was no need to enter a ‘circuitous excalibus’ exercise to look for the meaning intended by the framers.

The said exercise to look for the meaning intended by the framers, itself is in violation of Article 11(3)22 of FC which states:

    “Every religious group has the right – (a) to manage its own religious affairs;”

Hence, meaning of “Islam” and “Islamic religion” must be according to what Islam is. It definitely cannot be as what the non-Muslim framers intended it to be.

Tun Salleh Abbas committed the second error for reasons as follows:

His Lordship’s summarisation of the “history” as to the position of Islam pre Merdeka is in error as submitted with reference to the article written by Yang Arif Dato’ Mohd Hishamuddin Bin Mohd Yunus in his article titled An Essay On The Constitutional History of Malaysia (Part 1).

Tun Salleh Abbas also committed a further error in limiting the definition of Islam under Article 3(1) of FC, by personally making his own findings as to what Islam is meant to be, when in fact, it is for the scholars of Islam to decide (refer Ramah Taat v Laton Malim Sutan 6 FMSLR (1927) 128.

Furthermore, Che Omar was decided on 29.2.1988, prior to the coming into effect of Article 121(1A) of FC on 10.6.1988. Hence, had Article 121 (1A) of FC been placed before His Lordship Tun Salleh Abas, His Lordship would not have entered into the exercise as to find the meaning of Islam as intended by the framers, but would have passed it on to the Syariah courts to do the same, as required under Article 121(1A) of FC.

For the reasons as above stated, the Supreme Court decision in Che Omar is no longer good law. Hence the courts in Malaysia must allow Article 3(1) of FC to break away of from the shackles of Che Omar.

On the same basis, any argument that the Federal Court decision in Meor Atiqulrahman Ishak & Ors v. Fatimah Sihi & Ors [2006] 4 CLJ 1 which had referred to the Che Omar’s decision, has therefore approved and restated the position of Che Omar post 10.6.1988, would be an error since the Federal Court in Meor Atiqulrahman did never discuss the merits or demerits in Che Omar’s decision, as done here. The courts in Malaysia are free to depart from the position taken in Che Omar and Meor Atiqulrahman.

Also, we must look at all the state enactments in the state, to remove the provisions that both parties need to be Islam. Unless it is amended, our state enactment will be against our Islamic principles. How are we to call ourselves an Islamic authority, Islamic Court and governed by Islamic principles, when our own enactment is unislamic.

It is time, for the various authorities inclusive of Majlis-Majlis Agama and Jabatan-Jabatan Agama, to carry out the position of Islam as it is under Article 3(1) of the Constitution. By amending the necessary provisions and clarifying the position of Islam with the rest in the society, so that it is understand that there is no deprivation of non-Muslim right in the Islamic court.

Syariah court should be brave enough to make a fair decision when the non-Muslim right prevails. They must be made the custodian of the children when they are befitting to be the custodian, of course with certain conditions, such as for the Majlis to supervise the education of the child and to ensure that the child is given proper Islamic teachings from their parent. This must be discussed, studied and implemented as soon as possible in order to prevent any further conflict.

The current position of the law itself does not require any amendment if it is apply properly to the issue of religion and contrary of religion upon conversion by one spouse. The Federal Court in Subashini Rajasingam v. Saravanan Thangathoray & Other Appeal (supra), wherein His Lordship Nik Hashim FCJ stated in judgment at pages 33 – 34 as follows:

    “… The word ‘parent’ in art. 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent. In Teoh Eng Huat v. The Kahdi of Pasir Mas, Kelantan & Anor [1990] 1 CLJ (Rep) 277), Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, said at p 14 (p. 280):

    In all the circumstances, we are of the view that in the wider interest of the nation, no infant shall have the automatic right to receive instructions relating to any other religion that his own without the permission of the parent or guardian.

Further down, his Lordship continued:

    We would observe that the appellant (the father) would have been entitled to the declaration he had asked for. However, we decline to make such declaration as the subject is no longer an infant. (emphasis added)

Therefore, art. 12(4) must not be read as entrenching the right to choice of religion in both parents. That being so, art 8 is not violated as the right for the parent to convert the child to Islam applies in a situation where the converting spouse is the wife as in Nedunchelian, supra, and as such, the argument that both parents are vested with the equal right to choose is misplace. Hence the conversion of the elder son to Islam by the husband albeit under the Selangor Enactment did not violate the FC. Also reliance cannot be placed on s. 5 of the Guardianship of Infants Act 1961 which provides for equality of parental rights since s. 1(3) of the same Act has prohibited the application of the act to such person like the husband who is now a Muslim. (Shamala Sathiyaseelan v Dr Jayaganesh C Mogarajah & Anor [2004] 2 CLJ 416)…”

It is therefore, our submission that the interpretation of the word parent in Article 12 (4) FC to mean a single parent is the correct position in law, hence the conversion of the three children into Islam is not ultra vires the Constitution.

Furthermore Article 8 of FC has no bearing to this argument since the right for the parent to convert the child to Islam applies even in a situation, where the converting spouse is the wife (as in the case of Nenduchelian above referred), and therefore the argument on gender bias is misconceived.

Also, reliance cannot be placed on Section 5 of GIA which refers to equality on parental right since Section 1 (3) (b) of GIA has prohibited the application of the Act to such person upon him professing the religion of Islam, as well as the subject matter (the three children) themselves being “Muslims”.

Hence, at the very least, rather than amending the Law Reform Act, to compel the Muslims to go to the civil courts, this area of dispute, need no amendments.

In summary, the authors submit the following recommendations:

    1. For the Government to advocate an approach consistent with the position of Islam in the Federal Constitution, which allows Muslims what Islam requires them to practice where there are clear principles of Syarak confirmed by learned Islamic scholars;
    2. For the Government to amend a certain provisions in the Federal Constitution to allow non Muslims to appear before the Syariah Court in determining any disputes involving overlapping rights between Muslims and non Muslims; and
    3. Amendments if made to section 51 should be allowed only to the extent of making it administrative. This is only to allow the non Muslim spouse to go and obtain a decree made absolute so as to allow the non Muslim spouse to continue with his/ her life. All ancillary reliefs are to be sought at Syariah Court.
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