1a(P) IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) APPEAL NO: 01 12/201 5(N} BETWEEN STATE GOVERNMENT OF NEGERI SEMBILAN . DEPARTMENT OF ISLAMIC RELIGIOUS AFFAIRS, NEGERI SEMBILAN . DIRECTOR OF ISLAMIC RELIGIOUS AFFAIRS, NEGERI SEMBILAN CHIEF ENFORCEMENT OFFICER, ISLAMIC RELIGIOUS AFFAIRS, NEGERI SEMBILAN CHIEF SYARIE PROSECUTOR, NEGERI SEMBILAN MAJLIS AGAMA ISLAM NEGERI SEMBILAN «= APPELLANTS AND - MUHAMAD JUZAILI BIN MOHD KHAMIS (NRIC NO: 870722-03-5133) . SHUKUR BIN JANI (NRIC NO : 860128-59-5243) . WAN FAIROL BIN WAN ISMAIL (NRIC NO : 840319-06-5415) .. RESPONDENTS (In The Matter of Civil Appeal No: N-01-498-11/2012 at the Court of Appeal Malaysia) Between Muhammad Juzaili Bin Mohd Khamis (NRIC No : 870722-03-5133) . Shukur Bin Jani (NRIC No : 860128-59-5243) Wan Fairol Bin Wan Ismail (NRIC No : 840319-06-5415) Appellants And - State Government Of Negeri Sembilan Department Of Islamic Religious Affairs, Negeri Sembilan3. Director Of Islamic Religious Affairs, Negeri Sembilan 4, Chief Enforcement Officer, Islamic Religious Affairs, Negeri Sembilan 5. Chief Syarie Prosecutor, Negeri Sembilan Respondents (Decided by the Court of Appeal on 7.11.2014) WRITTEN SUBMISSIONS FOR THE 6™ APPELLANT (Maj Agama Islam Negeri Sembilan) AND ALL AMICUS CURIAE — ISLAMIC COUNCILS (Majlis Agama Islam Wilayah Persekutuan, Majlis Agama Islam Selangor, Majlis Agama Islam Dan Adat Melayu Perak, Majlis Agama Islam Negeri Pulau Pinang, Majlis Agama Islam Negeri Johor) Solicitors for the 6" Appellant and Majlis ‘Agama Islam Selangor Messrs. Azaine & Fakhrul Unit No. CO7/3, Tingkat 4, Blok C Garden City Business Centre Taman Dagang, 88000 Ampang Selangor. Solicitors for Majlis Agama Islam Negeri Pulau Pinang and Majlis Agama Islam Dan ‘Adat Melayu Perak — Amicus Curiae Messrs. Zainul Rijal Talha & Amir No. 15-5, 5th Floor, Jalan USJ 9/5Q ‘Subang Business Centre 47620 Subang Jaya Selangor Darul Ehsan ‘Solicitors for Majlis Agama Islam Wilayah Persekutuan — Amicus Curiae Messrs. Zulkifli Yong Azmi & Co. €-32-3A & C-5-32, Block Camilia, 10 Boulevard, Lebuhraya Sprint PJU 6A Damansara, 47400 Petaling Jaya Selangor. Solicitors for Majlis Agama Islam Negeri Johor Messrs. Ikbal Salam & Assox No 40 & 42 Jalan Molek 1/28 Taman Molek 81100 Johor Bahru Solicitors for Respondent Messrs. Azzat & Izzat Peguambela & Peguamcara No. 32, Jalan PU 7/16 Mutiara Damansara 47800 Petaling Jaya Selangor Darul Ehsan Tel: 03-77256050 Faks: 03-77256070aI SB 38 I SRB SSIS “3 eo: WRITTEN SUBMISSIONS FOR THE 6" APPELLANT (Majlis Agama Islam Negeri Sembilan) (AND ALL AMICUS CURIAE - ISLAMIC COUNCILS) (Majlis Agama Islam Wilayah Persekutuan, Majlis Agama Islam Selangor, Majlis Agama Islam Dan Adat Melayu Perak, Majlis Agama Islam Negeri Pulau Pinang, Majlis Agama Islam Negeri Johor) If it please My Lords/My Ladies, rendered herein under, is the Majlis Agama Islam Negeri Sembilan (“MAINS') (Intervener/6" Appellant)'s submissions for smooth disposal of this Appeal. Also, this written submissions is rendered by, for and on behalf of all the five (6) Islamic Councils given the right to appear and submit as Amicus Curiae, namely Majlis Agama Islam Wilayah Persekutuan, Majlis Agama Islam Selangor, Majlis Agama Islam Dan Adat Melayu Perak, Majlis Agama Islam Negeri Pulau Pinang, Majlis Agama Islam Negeri Johor. 1. BACKGROUND OF RELEVANT FACTS 1.1 Juzaili Mohammed Bin Mohd Khamis, Shukur bin Jani, Wan Fairol bin Wan Ismail (‘the Respondents") had been granted leave to file an application for Judicial Review on 04.11.2011 by Seremban High Court Judge, Her Ladyship Rosnaini Binti Saud, seeking declarations from Civil High Court, which are as follows:-3a b) That Section 66 of the Syariah Criminal Enactment Negeri Sembilan, 1992 (‘Section 66 of the 1992 Enactment’) is inconsistent with Article 8(2), 10 (1) (a), 9 (2) and 5 (1) of the Federal Constitution and thus null and void; Alternatively, Section 66 of the 1992 Enactment has no effect and does not apply to any person who is:- i. women in psychology; and ii. suffering from “gender identity disorder”. Alternatively, a Prohibition Order or a revision according to Paragraph 1, Court of Judicature Act 1964 issued to the Religious Enforcement Officer of Negeri Sembilan (the 4" Applicant) and the Chief Prosecutor of Negeri Sembilan (the 5” Applicant) from carrying out an investigation or proceeding with an investigation for offence under Section 66 of the 1992 Enactment against the Respondents and against any person, if they submit reports from psychologist that such persons are a woman psychologically or furnish such reports to suffer from “gender identity disorder’. After hearing on the substantive Judicial Review application, Seremban High Court Judge, Her Ladyship Datuk Siti Mariah Binti Haji Ahmad dismissed the application vide Order dated 11.10.2012.= “2.73 “3 “3 oS — 3 1.3 14 15 1.6 The Respondents had filed an appeal to the Court of Appeal against the Order of the Seremban High Court Judge dismissing their Application for Judicial Review. After hearing of the Respondents’ appeal, the Court of Appeal allowed the appeal and, amongst others, decided that Section 66 of the 1992 Enactment was illegal and unconstitutional because it is inconsistent with Article 5 (1), 8 (1) and (2), 9 (2) and 10 (1) (a) of the Federal Constitution. Dissatisfied with the decision of the Court of Appeal, on 05.12.2014, Majlis ‘Agama Islam Wilayah Persekutuan, Majlis Agama Islam Selangor, Majlis Agama Islam Dan Adat Melayu Perak, Majlis Agama Islam Negeri Pulau Pinang, Majlis ‘Agama Islam Negeri Johor applied for leave to intervene at the stage of leave before the Federal Court and/or substantive appeal before the Federal Court to challenge the decision of the Court of Appeal dated 07.11.2014. Upon hearing the application to intervene by the proposed interveners (the application for leave to intervene was heard together with the application for leave to appeal filed by the State Government of Negeri Sembilan and Others vide Application No: 08-679-12/2014), the Federal Court had decided to allow“3 3 —3 303 za 3 474 17.2 MAINS to intervene as a party in the substantive appeal before this Honorable Court (who appears now herein as 6" Appellant) and that, the Court had granted the State Government of Negeri Sembilan & Ors, leave to appeal to the Federal Court. Nevertheless, the Federal Court had extended an invitation to other proposed interveners (whose applications to intervene were dismissed) to appear as Amicus Curiae to assist the Court on legal and/or constitutional issues in the course of disposing the appeal. * Refer to : Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 3 MLJ 513 (“Court of Appeal’s Judgment”) [TAB 1A of the 6" Appellant's BOA]. In reference to the Memorandum of Appeal filed by the Appellants dated 06.04.2015, the principle question of law posed by the Appellants which shall be determined and/or answered by this Honorable Court is:- “Whether Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992] contravenes Articles 5(1), 8(1), 8(2), 9(2) and 10(1) (a) of the Federal Constitution?” In order to answer the above posed question in para 1.7.1, the Appellants have listed eight (8) further questions which are as follows:- [1] The Learned Judges of the Court of Appeal (and the High Court) were in error in entertaining the application for Judicial Review when the Courts 43.3 3 Ce ities Mitene Witsoe: Mita: Dittea: Miter: Witte Bite: Mite: Mite } aI AIO “3 = 2) 3] were not seized with jurisdiction to entertain such a challenge through the said mechanism on the legislative powers of the State to enact matters pertaining to Islamic laws, and particularly without resort to the procedures ‘specifically provided under Article 4(4) of the Federal Constitution. The Leamed Judges of the Court of Appeal were wrong in law and in fact in not considering that Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992] provided on matters within the exclusive jurisdiction of the State Syariah Court system and by virtue of Article 121(1A) of the Federal Constitution that the civil courts have no jurisdiction to entertain any challenge on such syariah law. The Learned Judges of the Court of Appeal were erroneous in law in not appreciating that Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992], being a law enacted by the State Legislature under Item |, List II-State List, Schedule 9 of the Federal Constitution, clearly falling within the rubric of “creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion” also forms the personal law of Muslims in the State and therefore by virtue of Article 121(1A) of the Federal Constitution a matter within the exclusive jurisdiction of the State Syariah Court system.3 “3 r - [4] The Learned Judges of the Court of Appeal were erroneous in law and in fact in not considering that any investigation and/or prosecution under [ Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992] in the State Syariah Court would entail, inter alia, the following issues: r a. The definition of ‘male’ within the section and if the term includes a fr male Muslim with Gender Identity Disorder (‘GID’); r b. __ Islamic philosophy on gender identity; p c. Gender at birth and registration as such; . d. Medical manipulation of the gender; L . Relevant historical and current psychological factor; f. Whether GID persons are able to raise the specific defence —33 provided in Section 11 of the Enactment, viz, the defence of unsoundness of mind, “= and therefore in the context of the above, the examination of the a) constitutionality or validity of Section 66 by the High Court and/or the a Court of Appeal was premature. “32 Te Se oy ee ey 5) (6) a The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 5(1) of the Federal Constitution when it is clear that Section 66 is enacted within the limits of the power of the State Legislative Assembly and therefore ‘in accordance with law” to create punishment of offences against the precepts of Islam within the meaning of Article 5(1) of the Federal Constitution. The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 81) and (2) of the Federal Constitution. Firstly, when it is clear that Section 66, despite using the word “male” also refer to the female gender by virtue of Section 4(2) of the Interpretation Act 1948 and 1967. Secondly, even if Section 66 is interpreted without falling back to Section 4(2) Interpretation Act 1948 and 1967, it is clear that Section 66 falls within the exception under Article 8(5)(a) of the Federal Constitution. The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 9(2) Federal Constitution when Section 66 does not restrict the movement of the Respondents.aoa ea (8) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 10(1)(a) Federal Constitution when Section 66 does not restrict the right to freedom of expression of the Respondents. 1.7.3. In order to smoothen our submissions to answer the principle question and the various supportive questions raised in the Memorandum of Appeal produced hereinabove, we shall render our submissions under THREE (3) broad categories which are as follows: (A) (B) QUESTION 1 (b) - PROCEDURAL CATEGORY 4(b)“ ...without resort to the procedures specifically provided under Article 4(4) of the Federal Constitution.”. QUESTION 1 (a), 2, and 3- NO CAUSE OF ACTION CATEGORY 4(a) “The Learned Judges of the Court of Appeal (and the High Court) were in error in entertaining the application for Judicial Review when the Courts were not seized with jurisdiction to entertain such challenge through the said mechanism on the legislative powers of the State to enact matters pertaining to Islamic laws. 8@) (3) The Learned Judges of the Court of Appeal were wrong in law and in fact in not considering that Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992] provided on matters within the exclusive jurisdiction of the State ‘Syariah Court system and by virtue of Article 121(1A) of the Federal Constitution that the civil courts have no jurisdiction to entertain any challenge on such syariah law; The Learned Judges of the Court of Appeal were erroneous in law in not appreciating that Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992], being a law enacted by the State Legislature under Item |, List II-State List, Schedule 9 of the Federal Constitution, clearly falling within the rubric of ‘creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion” also forms the personal law of Muslims in the State and therefore by virtue of Article 121(1A) of the Federal Constitution a matter within the exclusive jurisdiction of the State Syariah Court system.= 3 3 (C) QUESTION 5, 6, 7 AND 8 - COMPLIANCE TO THE LIBERTY CLAUSES CATEGORY (5) 6) (7) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 5(1) of the Federal Constitution when it is clear that Section 66 is enacted within the limits of the power of the State Legislative Assembly and therefore “in accordance with law’ to create punishment of offences against the precepts of Islam within the meaning of Article 5(1) of the Federal Constitution; The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 8(1) and (2) of the Federal Constitution. Firstly, when it is clear that Section 66, despite using the word "male" also refer to the female gender by virtue of Section 4(2) of the Interpretation Act 1948 and 1967. Secondly, even if Section 66 is interpreted without falling back to Section 4(2) Interpretation Act 1948 and 1967, it is clear that Section 66 falls within the exception under Article 8(5)(a) of the Federal Constitution; The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 9(2) Federal Constitution when Section 66 does not restrict the movement of the Respondents; and 10= 2 V3 3 3 “3S = = = aa (8) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 10(1)(a) Federal Constitution when Section 66 does not restrict the right to freedom of expression of the Respondents. 2. SUBMISSIONS My Lords/ My Ladies, 2.1 Question 4 of the Memorandum of Appeal is intended to be divided into two (2) parts, wherein the first part of the question is reproduced herein below:- (A) QUESTION 1 (b) - PROCEDURAL CATEGORY 4(b) “ ...without resort to the procedures specifically provided under Article 4(4) of the Federal Constitution.”. 2.2 Before this Honorable Court could decide on the validity and/or constitutionality of Section 66 of the 1992 Enactment, it is pertinent for this Court to be guided and/or assisted on the procedural aspects relating to the application for Judicial Review which was filed by the Respondents in the court below. 2.3 _ In order to determine the relevancy of the above stated issue, we shall first invite this Honorable Court to refer to Article 4 of the Federal Constitution [TAB 1 of 1ma 3S a BSI BIA SI A VBI SB OSB ABI GS aoa = the 6" Appellant's BOA], which we can only do justice by reproducing the same:- “4, Supreme law of the Federation. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution Shall, to the extent of the inconsistency, be void. (2) The validity of any law shall not be questioned on the ground that- (a) it imposes restrictions on the right mentioned in Article 9 (2) but does not relate to the matters mentioned therein; or (b) it imposes such restrictions as are mentioned in Article 10 (2) but those restrictions were not deemed necessary or expedient by Parliament for the purposes mentioned in that Article. (3) The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or- (2) if the law was made by Parliament, in proceedings between the Federation and one or more States; (b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State. (4) Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall not be commenced without leave of a judge of the Federal Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause. 12aI SS 24 25 26 By reading Article 4(4) Federal Constitution [TAB 4 of the 6 Appellant's BOA|, it is crystal clear that whoever wishes to bring any proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) of Article 4 Federal Constitution, there shall first be an application for leave before the Federal Court, and thereafter by way of a main action to be heard by the Federal Court. Nevertheless, in the present appeal, the Respondents had filed an application for leave to file a Judicial Review at the High Court, seeking declarations, amongst others, that “Section 66 of the Syariah Criminal Enactment Negeri Sembilan, 1992 (“Section 66 of the 1992 Enactment’) is inconsistent with Article 8(2), 10 (1) (a), 9 (2) and 5 (1) of the Federal Constitution and thus null and void’. Erroneously, the High Court had granted the leave to file an application for Judicial Review before the High Court, without addressing itself to the issue as to. whether it had jurisdiction and/or power to hear the application and thus to grant those declarations sought by the Respondents. In support to our argument herein above, we humbly invite this Honourable Court to refer to the case of Ah Thian v Government of Malaysia [1976] 2 MLJ 112, at page 113, [TAB 2 of the 6" Appellant's BOA] where the Federal Court, through Suffian L.P, made a very clear observations and findings on the B= “3-3 aA SI Aaa aA aI AIA SI “3! procedural aspects of Article 4 of the Federal Constitution. it was decided therein “Under our Constitution written law may be invalid on one of these grounds: (1) in the case of Federal written law, because it relates to a matter with respect to which Parliament has no power to make law, and in the case of State written law, because it relates to a matter which respect to which the ‘State legislature has no power to make law, article 74; or (2) in the case of both Federal and State written law, because it is inconsistent with the Constitution, see article 4(1); or (3) in the case of State written law, because it is inconsistent with Federal law, article 75, The court has power to declare any Federal or State law invalid on any of the above three grounds. The court's power to declare any law invalid on grounds (2) and (3) is not subject to any restrictions, and may be exercised by any court in the land and in any proceeding whether it be started by Government or by an individual, But the power to declare any law invalid on ground (1) is subject to three restrictions prescribed by the Constitution. First, clause (3) of article 4 provides that the validity of any law made by Parliament or by a State legislature may not be questioned on the ground that it makes provision with respect to any matter with respect to which the relevant legislature has no power to make law, except in three types of proceedings as follows:-- (a) in proceedings for a declaration that the law is invalid on that ground; or (b) if the law was made by Parliament, in proceedings between the Federation and one or more States; or (0) if the law was made by the Legislature of a State, in proceedings between the Federation and that State 143 A T3 3 “3 “3 3a a 3 27 It will be noted that proceedings of types (b) and (c) are brought by Government, and there is no need for anyone to ask specifically for a declaration that the law is invalid on the ground that it relates to a matter with respect to which the relevant legislature has no power fo make law. The point can be raised in the course of submission in the ordinary way. Proceedings of type (a) may however be brought by an individual against another individual or against Government or by Government against individual, but whoever brings the proceedings must specifically ask for a declaration that the law impugned is invalid on that ground. Secondly, clause (4) of article 4 provides that proceedings of the type mentioned in (a) above may not be commenced by an individual without leave of a judge of the Federal Court and the Federation is entitled to be a party to such proceedings, and so is any State that would or might be a party to proceedings brought for the same purpose under type (6) or (c) above. This is to ensure that no adverse ruling is made without giving the relevant government an opportunity to argue to the contrary. Thirdly, clause (1) of article 128 provided that only the Federal Court has jurisdiction to determine whether a law made by Parliament or by a State legislature is invalid on the ground that it relates to a matter with respect to which the relevant legislature has no power to make law. This jurisdiction is exclusive to the Federal Court, no other court has it. This is to ensure that a law may be declared invalid on this very serious ground only after full consideration by the highest court in the land...” Based on the above, we humbly submit that the declarations sought by the Respondents before the High Court by way of Judicial Review were in fact, an attack to the legislative powers of the State Legislative Assembly, in the sense that the Respondents were actually attempting to limit the legislative powers of the State Legislative Assembly, by saying despite the power to legislate Islamic law having been specified under Article 74 of the Federal Constitution, that Islamic law must still comply with the liberty clauses under Articles 8(2), 10 (1) 1533 3S “3 3 “3 3 = 3 B23 3 3 28 (a), 9 (2) and 5 (1) of the Federal Constitution, and thus null and void. Those declarations sought by the Respondents should from the outset not been entertained by the High Court, on the ground that the High Court had no jurisdiction to hear the matter, and that the Respondents should have filed an application for leave to the Federal Court pursuant to Clause 4 of Article 4 Federal Constitution [TAB 1 of the 6" Appellant's BOA]. Thereafter, it must then proceed as an original action for those declarations before the Federal Court, and not by way of Judicial Review before the High Court. This is so, even though the Respondents were not literally saying that they were questioning the legislative powers of the State Legislative Assembly, for their application to fall strictly within Article 4(3) and (4) of the Federal Constitution ITAB 1 of the 6" Appellant’s BOA]. However, for the Respondents to state that the Islamic laws passed by the State Legislative Assembly must comply with the liberty clauses under Articles 8(2), 10 (1) (a), 9 (2) and 5 (1) of the Federal Constitution, was directly an argument to curtail the legislative powers of the State Legislative Assembly. Hence, Article 4(1) of the Federal Constitution is of no help to the Respondents’ cause, since it is a provision which constitutionally allows challenge on the validity of any laws to be made with reference to inconsistency with the Constitution, only if the inconsistency complained of did not in any way touch the legislative powers of the State Legislative Assembly, as opposed to this matter before this Honorable Court. 16= 29 2.10 We now invite this Honorable Court to refer to the Judgment of Ariffin Zakaria (CJ) in delivering the majority decision (4:3) of the Federal Court in the Application For Leave To Appeal, Civil Appeal No: W-01-1-2010 (“The Herald Case”), Para 42, [TAB 3 of the 6 Appellant's BOA, in which His Lordship stated therein that “[42] The effect of clauses (3) and (4) of Art. 4 as explained by the Supreme Court in Abdul Karim bin Abdul Ghani (supra) is that the validity or constitutionality of the laws could not be questioned by way of collateral attack, as was done in the present case. This is to prevent any frivolous or vexatious challenge being made on the relevant legislation. Clause (3) of Art. 4 provides that the validity or constitutionality of the relevant legislation may only be questioned in proceedings for a declaration that the legislation is invalid. And clause (4) of art. 4 stipulates that such proceedings shall not be commenced without the leave of a Judge of the Federal Court. This procedure was followed in a number of cases. (See Fathul Bari Mat Jahya (supra); Sulaiman Takrib v Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other Cases [2009] 2 CLJ 54 (FC); Mamat Daud & Ors. v. The Government of Malaysia [1986] CLJ Rep 190 (SC),)”. The 6" Appellant further submits that the Court of Appeal was in complete error in concluding that the legislative powers exercised by the 1" Appellant in passing v7= SS 2 aS SS oS Ss Fo “3 the impugned provision should be limited to the conditions and restrictions imposed under Article 74(3) Federal Constitution. His Lordship Mohd Hishamudin JCA, in delivering the decision, made a grave error by failing to appreciate that Article 4(4) of the Federal Constitution [TAB 4 of the 6 Appellant's BOA], clearly provides that the validity or constitutionality or the impugned provision may only be questioned with the leave of a Judge of the Federal Court. His Lordship made a finding that ‘/34] Reading Article 74(3) and art 4(1) together, it is clear (and this legal position is not disputed) that all State laws, including Islamic laws passed by State Legislatures, must be consistent with Part I! of the Federal Constitution (which guarantees the fundamental liberties of all Malaysian).*. With due respect, we humbly submit that the finding made by His Lordship was completely wrong and cannot sustain. Firstly, His Lordship failed to address himself on the procedural aspect that the Respondents had wrongly been before the High Court (and thereafter the Court of Appeal) in their wrongful reliance on Article 4(1) of the Federal Constitution [TAB 1 of the 6” Appellant's BOA], when in fact and in law the Respondents should have proceeded to file an application for leave and to proceed with the main action directly to the Federal Court under Article 4(4) of the Federal Constitution ITAB 3 of the 6" Appellant's BOA]. Secondly, His Lordship further erred when His Lordship came to the conclusion that the exercise of the power by the State Legislative Assembly in enacting laws pertaining to Hukum Syarak and offences committed by the persons professing the religion of Islam was limited by Article 74(3) of the Federal Constitution, when in fact the Court of Appeal in the light of 187 3a = maa aS 3a oS 2.14 31 Article 4(4) of the Federal Constitution was not seized with jurisdiction to do so. Finally, His Lordship also, as we shall submit under Categories B and C hereinafter, was in error in making the finding that Article 74(3) of the Federal Constitution did in fact limit the legislative powers of the State Legislative Assembly to enact laws pertaining to Hukum Syarak and offences committed by the persons professing the religion of Islam. With due respect, we humbly submit that any proceeding carried out without jurisdiction and/or power is null and void ab initio as per Ah Thian (supra) [TAB 2 of the 6" Appellant's BOA], and The Herald Case (supra) [TAB 3 of the 6 Appellant's BOA]. * Refer to Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, at page 426 and 427 [TAB 4 of the 6" Appellant's BOA], wherein, His Lordship Gopal Sri Ram, JCA cautioned therein that “But where an order of such court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose...” (B) QUESTION 1 (a), 2, and 3 - NO CAUSE OF ACTION CATEGORY 1(a) “The Learned Judges of the Court of Appeal (and the High Court) were in error in entertaining the application for Judicial Review when 19— eo) = 23 (2) (3) the Courts were not seized with jurisdiction to entertain such challenge through the said mechanism on the legislative powers of the State to enact matters pertaining to Islamic laws...”; The Learned Judges of the Court of Appeal were wrong in law and in fact in not considering that Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992] provided ‘on matters within the exclusive jurisdiction of the State Syariah Court system and by virtue of Article 121(1A) of the Federal Constitution that the civil courts have no jurisdiction to entertain any challenge on such syariah law; The Learned Judges of the Court of Appeal were erroneous in law in not appreciating that Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 [Enactment No. 4/1992], being a law enacted by the State Legislature under Item |, List lI-State List, Schedule 9 of the Federal Constitution, clearly falling within the rubric of “creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion” also forms the personal law of Muslims in the State and therefore by virtue of Article 121(1A) 20343 IAI SBI RI I OI SI SS a —3 ea oa 3.2 3.3 34 of the Federal Constitution a matter within the exclusive jurisdiction of the State Syariah Court system. With due respect, we humbly state that the above supportive questions posed by the Appellants in the Memorandum of Appeal have already been raised and submitted by Majlis Agama Islam Wilayah Persekutuan (MAIWP), the Appellant in the Appeal No: 01 (f)-10-03/2014(W), vis a vis Victoria Jayaseele Martin’s case, which is yet to be disposed of by this Honorable Court. Thus, in this regard, we shall now reproduce the submissions on relevant points and authorities as mentioned and/or adopted in Victoria's case for the smooth disposal of this present appeal. The constitutionality of the Islamic Rules and/or Islamic Enactments which are passed by State Legislative Assemblies has currently been subject to rising challenge, on the ground that it touches the various freedoms of individuals, purportedly guaranteed without limitations, pursuant to Part Il Federal Constitution. Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 [TAB 5 of the 6" Appellant's BOA], provides that: a33 93 “a 3 Ia SB SIS a3 oS 373 35 3.6 “Any male person who, in any public place wears a woman's attire or poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months of to both.”. It is pertinent to note that Section 66 of the 1992 Enactment [TAB 5 of the 6” Appellant's BOA], which is the subject of attack by the Respondents herein, was passed by the State Legislative Assembly pursuant to the power given by the Federal Constitution, particularly Article 74 (2) [TAB 6 of the 6" Appellant's BOA, read together with Item |, List II, State List to the 9" Schedule Federal Constitution [TAB 7 of the 6" Appellant’s BOA]. In exercising its legislative Powers conferred by the Parliament, The Appellant had, in its wisdom, passed the impugned provision pertaining to the “...creation and punishment of offences by persons professing the religion if Islam against precepts of that religion, except in regard to matters included in the Federal List...” + Refer to: 1) Article 74 of the Federal Constitution [TAB 6 of the 6" Appellant's BOA]. + 2) Item |, List Il, State List 9 Schedule of the Federal Constitution [TAB 7 of the 6" Appellant's BOA]. Now, it is also pertinent to note beyond doubt, at the outset that the State Legislative Assemblies have powers to enact Islamic laws, and also that the Syariah Courts have jurisdiction, both, only over persons professing the religion of Islam. 22=a 39 —3 =) 37 38 + Refer to: 1) Item 4, List Il of the Ninth Schedule, read together with Article 74 and Article 121(1A) Federal Constitution. [TAB 7 of the 6” Appellant's BOA]. * 2) Article 121(1A) Federal Constitution [TAB 8 of the 6" Appellant's BOA] Prior to the rendering our submissions under this issue towards answering the above posed questions, we shall now detve into the importance of the legislative history of Article 121 (1A) and Item 1 List Il, Ninth Schedule of the Federal Constitution, particularly the pre-amendment and post-amendment thereof. Article 121(1) prior to 1988: “Subject to clause (2) the judicial power of the Federation shall be vested in two High Court of co-ordinate jurisdiction and status, namely- (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur, and (0) one in the States of Sabah and Sarawak, which shall be known as the High Court in Borneo and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine; (c) (Repealed), And in such inferior courts as may be provided by federal law’. A Bill was introduced in the Government Gazette on 14.4.1988 which provided that: [TAB 9 of the 6" Appellant’s BOA]. “Clause 8 of the Bill 8. Article 121 of the Federal Constitution is amended- (a) by substituting for the words “Subject to Clause (2) the judicial power of the Federation shall be vested in” at the beginning of Clause (1) the words “There shall be’; 23on a) 3793 73 a3 “3 3.9 3.10 (b) by substituting for the words “and in such inferior courts as may be provided by federal law” at the end of Clause (1) the words “and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have jurisdiction and powers as may be conferred by or under federal law’; (c) by inserting, immediately after Clause (1), the following new Clause (1A): “(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”; (d) by substituting for the words “The following jurisdiction shall be vested in” at the beginning of Clause (2) the words “There shall be"; and (@) by inserting, immediately after the words “Kuala Lumpur,” in Clause (2), the words “and the Supreme Court shall have the following jurisdictior ‘The explanatory statement to Clause 8 of the Bill [TAB 9 of the 6" Appellant's BOA], provided that: “8. Article 121 provides the constitutional basis for the existence of the two High Courts, the inferior courts and the Supreme Court. It vests the judicial power of the Federation in the High Courts and the inferior courts, and it vests in the Supreme Court certain jurisdiction. Clause 8 of this Bill seeks to delete the vesting provisions in Article 121 and to provide Clause (1) of that Article that the Jurisdiction and powers of the High Courts and subordinate courts are as may be conferred by or under federal law. Clause 8 of this Bill also seeks to add a new Clause (1A) which declares that those courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” On 10 June 1988, Article 121(1) was amended to remove the words “judicial power of the Federation shall be vested in two High Courts’ as a consequence of the 1988 crisis which surrounded the Judiciary at that particular time and added Clause (1A) to that effect. 24aaa 3 |e 3 = 20 3 3.11 * Refer to: 1) Article by Tan Sri Datuk Professor Ahmad Ibrahim titled “The Amendment To Article 121 Of The Federal Constitution: Its Effect On Administration Of Islamic Law”. [TAB 10 of the 6” Appellant's BOA] 2) Simposium Mengenai Pindaan Perlembagaan Malaysia 1988 Implikasi Undang-Undang, 4 Jun 1988. [TAB 11 of the 6” Appellant's BOA] It is pertinent to note that the reasons for the amendment to Article 121(1) and the addition of Article 121(1A) Federal Constitution in 1988, was to avoid any future conflict between the decisions of the Syariah courts and the civil courts. However, the actual intent and objective of the Parliament to do so in order to give effect to the appreciated position of Islam under the Constitution can be clearly gleaned from various materials thereon. Tan Sri Datuk Professor Ahmad Ibrahim in his Article titled “The Amendment To Article 121 Of The Federal Constitution: Its Effect On Administration Of Islamic Law” [TAB 10 of the 6" Appellant's BOA], discussed the reasons and effects of the Amendment to Article 121(1): “In a number of cases the High Court in dealing with Muslim parties have not applied the Islamic law but have applied the law which is in conflict with the Islamic law. Thus in the case of Ainan bin Mahmud v Syed AbuBakar the High Court decided that a child bor to a Muslim woman four months after her marriage to a Muslim man is the legitimate child of that man. The court relied on the provisions of s 112 of the Evidence Enactment but it is clear that the decision is contrary to Islamic law...” “The amendment to the Constitution may be said to have enhanced the status of the Syariah Courts and they can no longer be regarded as inferior 25za Sa AO 33 3 7 = 3.12 3.13 to the civil courts. The Syariah courts have been freed from interference by the civil courts...” In the case of Mohamed Habibullah bin Mahmood v Faridah Bte Dato Talib [1992] 2 MLJ 793 Supreme Court page 803, 804 [TAB 12 of the 6” Appellant's BOA], the Court held that: “Taking an objective view of the Constitution, it is obvious from the very beginning that the makers of the Constitution clearly intended that the Muslims of this country shall be governed by Islamic Family Law as evident from the Ninth Schedule to the Constitution. Item 1 of the State List provides: Muslim Law and personal and family law of persons professing the Muslim religion...the constitution, organization and procedure of Muslim courts...the determination of matters of Muslim Law and doctrine and Malay custom, Indeed, Muslim in this country are governed by Islamic personal and family laws which have been in existence since the coming of Islam to this country in the 15” century. Such laws have been administered not only by the Syariah Courts but also by the civil courts. What Art 121 (1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic Laws. In other words, art 121 (1A) is a provision to prevent conflicting jurisdiction between the civil courts and the Syariah Courts...” Wherefore, it is respectfully submitted that Article 121(1A) [TAB 8 of the 6” Appellant's BOA], was inserted in 1988 to enhance the status of the Syariah Courts and to limit the jurisdiction of the civil courts over matters which are within the jurisdiction of the Syariah Courts to decide, in the growing appreciation and recognition of the position of Islam in this country under the Constitution. 26Se ns me es — 3.14 3.15 Further to the above, a reference to the legislative powers of the State as provided for under Item 4 List II Ninth Schedule read together with Article 74 of the Federal Constitution clearly provides for States the jurisdiction and power to legislate “...creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law;...” Hence, with the clarity of the purpose and intent for the insertion of Article 121(1A) (strengthening the position of the Syariah courts) [TAB 8 of the 6” Appellant's BOA], and the existence of the provisions in Item 1 List Il, Ninth Schedule (the legislative powers of the State Assemblies to enact Islamic Enactments and Syariah courts) [TAB 7 of the 6 Appellant's BOA], being an appreciation and growing recognition of the special position of Islam in Federal Constitution, one must then question, whether Islamic laws generally being laws restricting Muslims individual rights in order to carry out the precepts of the religion for the benefit of Muslims communal rights, would have been intended by the Parliamentarians whom carried out those amendments, to be read subject to the secular individual rights originally protected for all and sundry under the 7“S33 “3 =s —s 3 oe) —3 oe 23a 2B 3a 3 3.16 liberty clauses provided under Part II of the same Constitution. The 6" Appeliant shall answer this question in further detail hereinafter. However at this juncture it is our humble submissions that the existence of the liberty clauses provided under Part Il Federal Constitution, since the inception of Federal Constitution, cannot reasonably be expected to be read in order to limit the extended powers of the States to pass Islamic Enactments, when it is well within the full knowledge of the Parliamentarians, that Islamic law, analyzed on a secular basis provides for subrogation of individual Muslims rights to communal Muslims rights. Otherwise, the amendments above stated would be repugnant and become redundant. Furthermore, Article 11 (3) states: “(3) Every religious group has the right-— (a) to manage its own religious affairs; Hence, it is beyond dispute that even Federal Constitution provides for, Islam is what Islam says it is. Thus, there can be no limitation and/or importation of only parts of what Islam is to the exception to some other parts of Islam. If Islam provides for, as it does, for the individual Muslims rights to be subjected to the precept and injunction of the religion for the benefit of the religion and the communal Muslims rights, then no laws of this land, and not even Federal Constitution upon giving the recognition to Islam, can then be requested to make 28a 3 3 —s 3 3 = 3 3.17 it subject to provisions which are in contradiction to the precept and injunction of the religion Islam, In furtherance to the above, it is beyond dispute that most of the States Enactments and/or Rules contain provisions restricting and/or limiting any acts and conducts of any individual Muslim professing the religion of Islam which is contrary to the precept and injunction of Islam, based on the A-Quran and Sunnah, being the main sources of the Islamic Syarie principles, the basis of the laws passed by the State Legislature, empowered to do so, by the promulgation of the necessary Islamic Enactments and/or the Rules. For instance, the provisions of certain States Islamic Enactments prohibit and/or restrict a man from wearing a woman's attire in public places, or sale of any food or drinks to any Muslims during the fasting month, or even allows for conviction and imposition of fine on a male person who fails to perform the Friday prayers for three weeks consecutively, without any reasonable cause. These are, on the surface of it, provisions which appear to contravene the various liberty clauses of the Federal Constitution, such as Article 5, 8, 9 or 10. However, as submitted herein before, it is important to note that since in Islam, the rights of the Muslim community supersede the rights of the Muslim individual, and the existence of the above referred provisions in the Federal Constitution, giving rightful position and respect to the religion of Islam by empowering the State Legislative Assembly to enact such laws and for the Syariah courts to judicially administer 29ee “3 “3 3a 3 3.18 such laws, it must be concluded that the Parliamentarians intended the subsequent amendments in 1988 and 2001 (as referred to herein before) NOT TO BE subjected to those various liberty clauses of the Federal Constitution which were in existence and within the knowledge of those Parliamentarians carrying out the amendments. Dr Shad Saleem Faruqi in his article titled “Beauty Contest And Syariah Law in Selangor [1997] 4 CLJ | [TAB 13 of the 6" Appellant’s BOA], elucidates therein that: *..Jndividuals have a right to the widest possible autonomy and freedom of choice unless their conduct causes detriment to the society of which they are apart...” “lt must be observed, however, that as this case involves the enforcement of syariah law, Islamic philosophy ought to be taken note of. The liberals, the sceptics and the non-believers should be prepared to take cognizance of the Syariah on its own terms in order to make sense of what the Selangor law seeks to achieve...” “..dn Islam, the state has a clear-cut duty to foster morality and to promote all that is right and forbid all that is wrong. The criterion of ‘right’ and ‘wrong’ is not based on utility, or the opinion of the men and women in the Jury box, or the prevailing notions of propriety. The criterion is objective, impersonal and external. It rests on the Holy Quran and the Hadith. ..” ‘...in_ some circumstances, assertion of individual rights can lead to the diminishing of collective welfare and dignity...” 30c r r c t t [ c t c c c c c f 3.19 3.20 Also, Justice Apandi Ali in the case of Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468 at page 495 para 48 [TAB 14 of the 6" Appellant's BOA, therein declared that “...the welfare of an individual or group must yield to that of the community...” We humbly submit that, the creation of offence under Section 66 of the 1992 Enactment [TAB 5 of the 6" Appellant's BOA] was based on the Al-Quran and Hadiths, being the primary sources in enacting Islamic Enactments (we shall come back at this point at the later part of our submissions), which is within precepts of Islam under Item |, List II Ninth Schedule of the Federal Constitution. In any event, the issue whether the contents of Section 66 of the 1992 Enactment is within the precept of Islam or otherwise, is NOT an issue before this Honorable Court, which can be seen from the Court of Appeal's judgment of His Lordship Mohd Hishamudin JCA at page 523, paragraph 38, which he declared therein that ‘38 We wish to make it clear here that whether or not s 66 is consistent with the precepts of Islam is not in issue in the present case. Indeed, this is conceded by Mr. Aston Paiva, learned counsel for the appellants.”. itis also submitted that any psychiatrist report produced by the Respondents can not, in any way, be the sole factor for the Respondents to challenge the Hukum Syarak, as opposed to what is clearly stated in the Holy Quran and strengthened by Hadiths for the Muslims to obey. 3132°93 3 3 93 43 Ss = a 33 2 3 3.21 We further submit that, if this Honorable Court is of the opinion that Section 66 of the 1992 Enactment [TAB 5 of the 6" Appellant's BOA] can be challenged on the grounds that it purportedly contravened the various articles under Part II Federal Constitution, then, in all circumstances, all other Islamic provisions under all other various States Enactments with regards to “...offences by persons professing the religion of Islam against precepts of that religion...” will be subjected to challenge on the ground that the law and/or rules contravene various articles under Part II Federal Constitution. Hence, it would result in State Legislative Assemblies, paralyzed from carrying out their constitutional duties under Item 1 List II Ninth Schedule [TAB 7 of the 6" Appellant’s BOA] read together with Article 74 of the Federal Constitution [TAB 6 of the 6” Appellant's BOA] which provides for the States to have the jurisdiction and power to legislate “...creation and punishment of offences by persons professing the religion of Islam against precepts of that religion,...”. Wherefore, we would humbly submit that, it would then result in the whole Islamic institutions and/or systems and/or organizations including the various State Legislative Assemblies powers to legislate, and the various State Islamic Councils powers to administer, and the various State Syariah Courts powers to enforce “offences by persons professing the religion of Islam against precepts of that religion” will become redundant and defeated, totally against the written words and spirit of the Federal Constitution. 32c c c c t c f t i c c F t F t c t f r 322 3.23 In conclusion, it now brings us to Article 74(3) [TAB 6 of the 6" Appellant's BOA] of the Federal Constitution, which was erroneously relied upon by His Lordship Mohd Hishamudin, JCA in the Court of Appeal’s decision allowing the Respondents’ appeal, therein. It is our humble submissions, which shall for reasons to be addressed in more detail under paragraph 4 to 7 hereinafter, will show that Article 74(3) of the Federal Constitution [TAB 6 of the 6” Appellant's BOA] is meant to apply to restrict the legislative powers of the State Legislative Assemblies in passing all other areas of law which the State Legislative ‘Assemblies are given jurisdiction and powers to legislate pursuant to List Il, State List to the 9" Schedule Federal Constitution, read together with Article 74(2) of the Federal Constitution, except those pertaining to Islamic Syariah laws under Item I. That is so because Article 74(3) of the Federal Constitution is also a restriction applicable to the Federal law passed by the Parliament under Article 74(1). Hence, the purpose and intent of Article 74(3) is to restrict only non-Islamic laws passed by either the Federal Government or the State Legislative Assemblies which contravenes or is inconsistent with any other part of the Constitution (inclusive the various articles under Part ll of the Federal Constitution). Wherefore, it is our humble submission that Section 66 of the 1992 Enactment [TAB 5 of the 6" Appellant's BOA], CAN NOT be read subject to the liberty clauses for the reasons stipulated herein above. 33a5 = 3a 44 Whether by reading all Islamic State Enactments (inclusive and not limited to Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992), to always be subject to the liberty clauses provided under Part II of Federal Constitution, will in actual effect, and in “pith and substance” be an interference of the Federal Government on the affairs of the State Legislature to pass Islamic State Enactments, as demarcated by Article 74 Federal Constitution read together with Ninth Schedule List | and List Il, with specific reference to Item 1 List II thereunder. It must be remembered that the State List in the Ninth Schedule of the Federal Constitution is introduced by Article 74 [TAB 6 of the 6" Appellant's BOA] Which provides that the States shall be competent to make laws on matters set out in the State List. Also, it is beyond dispute that the Parliament cannot pass the law which is within the power of the State Legislative Assembly to enact. We humbly invite this Honourable Court to refer to the case of Mamat Bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119, [TAB 15 of the 6” Appellant's BOA], where the Federal Court through Salleh Abas L.P stated therein that: 34maa AS 3 1 “7 9 42 “Viewed in its proper perspective, the impugned section, in so far as its application to Muslim is concemed, is a law, the object of which is to ensure that Islamic religion practiced in this country must conform to the tenets, precepts and practices allowed by states. For example, it will not become an offence if any of the prohibited acts is done by an authorized religious officer, or conforms to such act, but, on the other hand, it will be an offence if that act is done by any other person notwithstanding the fact that the act was done in accordance with honest belief and honest interpretation of the precept, tenet, and teaching of Islam. In enacting this impugned section, | do not think that Parliament can really rely on its power to legislate on public order because the exercise of such powe comes into a direct conflict with the state powers to legislate on, and control, the practices of Islamic religion. In conclusion, | agree with the submission of Mr. Sri Ram, counsel for the petitioners, that by pith and substance, section 298A is, except for the two Federal Territories of Kuala Lumpur and Labuan, invalid as being a law which only a State Legislative could enact”. Before Article 121(1) was inserted in 1988, there were so many jurisdictional conflicts between civil courts and the Syariah Courts. These can be seen in various cases involving the disputes between the Muslims and the Non-Muslim Parties and/or the jurisdictional disputes with regards to which courts shall have jurisdiction to hear the matters. For instance in the case of Myriam v Mohamed Ariff [1971] MLJ 265, [TAB 16 of the 6” Appellant’s BOA], wherein, there had been a divorce before a Kathi and the Kathi had recorded a consent order giving the custody of the children of the marriage aged 8 years and 3 years respectively to the father. The mother subsequently remarried another man unrelated to the children and then claimed the custody of the children. The civil court held that despite the order of the Kathi, the applicant was entitled to make, and indeed the court had jurisdiction to hear the application. The relevant law referred to was the Guardianship of Infants Act, 1961, which was adopted by the Selangor 35Ie OO SB OS 4a a {I = 3 43 legislature but which provided that ‘nothing in the said Act which is contrary to the Muslim religion or the custom of the Malays shalll apply to any person under the age of eighteen years who professes the Muslim religion’. The learned Judge did refer to the Muslim Law which he stated provides inter alia that a woman entitled to the custody of a boy or girl is disqualified if she remarries a man not related to. the minor within the prohibited degree, so long as the marriage subsists’. However he said “I am of the opinion that the court is not disentitled to make an order for custody giving the infant to any of the parents if the welfare of the child so demands". + Refer to: 1) Boto’ Bte Taha v Jaafar Bin Muhammad [1985] 2 MLJ 98 [TAB 17 of the 6" Appellant's BOA] 2) Nafsiah v Abdul Majid [1969] 2 MLJ 174 and 175 [TAB 48 of the 6” Appellant's BOA] 3) Commissioner for Religious Affairs & Ors v Tengku Mariam [1970] 4 MLJ 222 [TAB 19 of the 6" Appellant's BOA], Therefore, it is respectfully submitted that the insertion of clause (1A) of Article 121 of the Federal Constitution in 1988 was for the purpose of rectifying the mischief that surrounded Syariah Courts prior to the amendment and to confer an exclusive right to the Syariah Courts to prevent the Civil Courts from interfering with the jurisdiction of the Syariah Court, Following the case of Mamat Bin Daud v The Government of Malaysia (Supra) [TAB 15 of the 6" Appellant's BOA], (which was decided by the Federal Court on 5.111987), and by reading it together with Item 1 of the State List, and Article 74 & Article 121 (1A) of the 3644 Federal Constitution, it can be submitted that by pith and substance, the Muslims should be governed by Islamic Law on subject matters stated under Item 1 of the Ninth Schedule therein and that Islamic Law shall be administered by the Syariah Courts without any interference from the civil courts. Having said that, MAINS further submits that if this Honourable Court allows Islamic Law under List II of the State List to be tested according to the liberty clauses under Part II of the Federal Constitution, indirectly, this Honourable Court allows the Federal Government through the liberty provisions under the Federal Constitution to govern Islamic Law of the States. Thus, it is our humble submission that there would be an indirect interference of Article 74 [TAB 6 of the 6” Appellant's BOA] of the Federal Constitution, in breach of the pith and substance rule declared by Mamat Bin Daud (Supra) [TAB 18 of the 6” Appellant's BOA]. In other words, the Federal Government would then with the innocent aid of the civil courts, wrongfully and unconstitutionally interfere with the States’ power to enact law, and to enforce it with the aid of the Syariah courts, as provided for under the Federal Constitution. Whether the requirement of harmonious interpretation of the Federal Constitution, would render the need for recognizing that in order for the State Legislature to perfectly carry out its duties and powers pertaining to Islamic Law, as provided for by Article 74 Federal Constitution, would 75.1 5.2 require recognition that those Islamic State Enactments cannot be read ‘subject to the liberty clauses provided under Part Il Federal Constitution. It is pertinent to note that, in deciding whether Article 121(1A) must be read ‘subject to the liberty clauses under Part Il of the Federal Constitution, regards must be made to the rules of interpretation of the Constitution. We invite this Honourable Court to refer to the case of Merdeka University Bhd v Government of Malaysia [1981] MLJ 356 at page 360, [TAB 20 of the 6" Appellant's BOA] in which, the Court held that: “...The Privy Council held in Minister of Home Affairs v Fisher (at page 329) that a Constitution should be construed with less rigidity and more generosity than other statutes (also Attorney-General of St. Christopher, Nevis and Anguilla v Reynolds (at page 655)) and as sui generis, calling for principles of interpretation of its own, suitable to its character, but added that respect must be paid to the language which has been used, and in The Cheng Poh alias Char ‘Meh v Public Prosecutor said (at page 468) that in applying constitutional law the court must look behind the label to the substance. Barwick C.J., said in the High Court of Australia in Attorney-General of the Commonwealth of Australia (at page 17): ‘The only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole: and to find its meaning by legal reasoning’.”II AIB IAI AB SBI BOO SB SB SI SI 4~aI ISIS ms 53 54 55 Also, in Dato Menteri Osman Bin Baginda & Anor v Dato Ombi Syed Alwi Bin Syed Idrus [1980] 1 MLJ 29 at page 32 therein [TAB 21 of the 6” Appellant's BOA], His Lordship Raja Azlan Shah Ag LP, declared as follows: “In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way ----~- “with less rigidity and more generosity than other Acts”. Furthermore, in the case of Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara, Malaysia & Anor [1999] 1 MLJ 266, at page 5 therein [TAB 22 of the 6" Appellant's BOAJ, the Federal Court stated:- .. Where the language of the constitution is open to two constructions, @ court should adopt the construction ‘which will ensure the smooth and harmonious working of the constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well- established provisions of existing law nugatory’. (Per Shelat and Grover JJ in Kesavananda Bharati v The State of Kerala AIR 1973 SC 1461 at p 1581.)” + Refer to: Ketua Polis Negara v Abdul Ghani Haroon [2004] 4 MLJ 11 Federal Court Justice Haidar (JCA) at page 16. [TAB 23 of the 6” Appellant's BOA] Based on the above cited authorities, and in line with the spirit and intent of the insertion of Article 121 (1A) and the existence of the legislative powers of the 395.6 State to enact Islamic laws pursuant to Item 1 List Il, Ninth Schedule, read together with Article 74 of Federal Constitution, it is our humble submission that to give life and to render those provisions redundant, the proposed harmonious tule of interpretation must be applied. In other words, those Islamic enactments passed by the States must be taken for all intent and purposes not to be subject to the liberty clauses. Otherwise, those intended powers of the States to enact Islamic laws, and as submitted herein before would be resigned to redundancy. On the other hand, if the State Legislative power to enact Islamic law is subjected to liberty clauses, then any Islamic enactment passed by the State Legislative Assembly, will inevitably tantamount to be ultra vires and/or in contravention to those liberty clauses. The nett result then would be, that the State Legislative Assembly will be powerless to enact any Islamic Law (which constitutionally it is empowered to do). As submitted herein before, most if not all of the enacted Islamic laws, would in one way or another, be infringing some, if not all of those liberty clauses. That is why it is humbly proposed that a harmonious reading to validate each and every Article of the Federal Constitution would require a conclusion that the powers of the States to enact Islamic laws cannot be made subject to passing the test of the liberty clauses. This was also the concern which was declared by His Lordship Ahmad Fairuz, CJ in Lina Joy Iwn Majlis ‘Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585, [TAB 24 of the 6" Appellant's BOA] wherein at page 618 therein, His Lordship cautioned: 40aA IIT SOI AIT SO Bama “ Pada pandangan saya, berkaitan dengan agama Islam (saya tidak memutuskan mengenai agama-agama Jain), perkara 11 tidaklah boleh ditafsirkan sebegitu luas sehingga ia membatalkan semua undang-undang yang menghendaki seseorang Islam itu mengerjakan sesuatu kewajipan agama Islam atau melarang mereka melakukan sesuatu perkara yang dilarang oleh agama Islam atau yang menetapkan acara bagi melakukan ‘sesuatu perkara yang berkaitan dengan agama Islam. Ini kerana kedudukan Islam dalam Perlembagaan Persekutuan adalah berlainan daripada kedudukan agama-agama lain. Pertama, hanya Islam, sebagai satu agama, yang disebut dengan namanya dalam Perlembagaan Persekutuan, iaitu sebagai ‘agama bagi Persekutuan’ (‘the religion of the Federation’) perkara 3(1)" Whether the Appellant's submissions herein above is further supported by the special position of Islam under: (i) Article 3(1) Federal Constitution, and (ii) Isiam as a basic structure of the Federal Constitution. The special position of Isiam under Article 3(1) Federal Constitution. Article 3(1) of the Federal Constitution provides [TAB 25 of the 6" Appellant’s BOAI: “Religion of the Federation 3. (1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation. 4a.aA ASI AI AWB I SI SIS aa —3 3 6.1.2 6.1.3 Before the advent of British control in Malay States, Islamic Law was fully and generally applied in all the nine Malay States. The Courts under British influence and manned by British Judges reiterated that Islamic Law is the law of the land and therefore need not be proved. * Refer to: Article written by Mohammed Imam entitled “Making Laws Islamic in Malaysia: A Constitutional Perspective” [1994] 3 CLJ vii. [TAB 26 of the 6"" Appellant's BOA] The history of Article 3 was further discussed in the case of Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468 [TAB 14 of the 6" Appellant's BOA] which stated therein that: “[82] Article 3(1) has a chequered history. Originally it was not in the draft proposed by the Reid Commission. As unfolded in the pages of history, the insertion of art 3(1) came about after objections, negotiations, discussions and consensus between all the stake-holders, including from various racial and religious groups. It came about by the White Paper known as the Federation of Malaya Constitutional Proposals 1957. Paragraphs 57-58 of the White Paper reads as follows: 57. There has been included in the proposed Federal Constitution a declaration that Islam is the religion of the Federation. This will in no way affect the present position of the Federation as a secular State, and every person will have the right to profess and practice his own religion and the right to propagate his religion, though this last right is subject to any restrictions imposed by State law relating to the propagation of any religious doctrine or belief among persons professing the Muslim religion. 58. The position of each of Their Highnesses as head of the religion in his State and the rights, privileges, prerogatives and powers enjoyed by him as head of that religion will be [19] unaffected and unimpaired. Their Highnesses have agreed however to authorize the Yang di-Pertuan Agong to represent them in 2aIoaI aI OS SB a ee —3 any acts, observances or ceremonies agreed by the Conference of Rulers as extending to the Federation as a whole. [33] In short, art 3(1) was a by-product of the social contract entered into by our founding fathers who collectively produced the Federal Constitution, which is recognised as the Supreme Law of the country. It is my judgment that the purpose and intention of the insertion of the words: ‘in peace and harmony’ in art 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam. It is also my judgment that the most possible and probable threat to Islam, in the context of this country, is the propagation of other religion to the followers of Islam. That is the very reason as to why art 11(4) of the Federal Constitution came into place...” In the case of Meor Atiquirahman Bin Ishak & 2 Ors v Fatimah Bt Sihi & 2 Ors [2000] § MLJ 375 [TAB 27 of the 6" Appellant's BOA], the High Court held that: "Pada pendapat saya “Islam ialah ugama bagi Persekutuan tetapi ugama-ugama lain boleh diamalkan dengan aman dan damai” bermakna Islam adalah ugama utama di antara ugama-ugama lain yang dianuti di Negara ini seperti Kristian, Buddha, Hindu dan selainnya. Islam bukan setaraf dengan ugama lain, bukan duduk berganding bahu atau berdiri sama tegak. la duduk di atas, ia berjalan dahulu, terletak di tempat medan dan suaranya lantang kedengaran. Islam ibarat pokok jati-tinggi, teguh dan terampil. Jika bukan sedemikian Islam bukanlah ugama bagi Persekutuan tetapi adalah salah satu di antara beberapa ugama yang dianuti di Negara ini dan setiap orang sama-sama bebas mengamalkan mana-mana ugama yang dianutinya, tiada lebih satu dari yang lain.” In Meor Atiquirahman (Supra) [TAB 27 of the 6" Appellant's BOA], the parties appealed to the Court of Appeal as well as Federal Court in which the latter had reversed the decision of the High Court on the ground that wearing of serban by boys is not an “integral part of the religion,". However, both Courts did 43“= 304 6.1.6 Not overrule the decision and finding of the High Court with regards to the position of Islam as stated in the Federal Constitution. It can be said that the Courts in Malaysia have recognized the special position of Islam under the Federal Constitution, Very recently, the Court of Appeal had on the occasion in visiting the position of Islam as the religion of the Federation under Article 3(1) of the Federal Constitution, in the case of Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468, [TAB 44 of the 6! Appellant's BOA] had made a fundamental and important pronouncement as to the special position of Islam, and its relation to the duties of the governments, authorities and the courts to maintain and strengthen that position of Islam placed thereto by the Federal Constitution. His Lordship Abdul Aziz Ab Rahim JCA, had at para 104 therein, declared: “[104] | would add however that the position of Islam as the religion of the Federation, to my mind imposes certain obligation on the power that be to promote and defend Islam as well to protect its sanctity. In one article written by Muhammad Imam, entitled Freedom of Religion under Federal Constitution of Malaysia — A Reappraisal [1994] 2 CLJ Ivii (June) referred to by leaned counsel for the eighth appeliant it was said that: ‘Article 3 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’.” It is also humbly submitted that, the Court of Appeal in delivering the Judgment, in this matter before this Honorable Court, had committed an: error in law 44“= aa 70°93 “3 = EB oO amas Aa AB SIA SS ae tear} pertaining to its finding as to the position of Islam under the Federal Constitution, by reference to the Supreme Court case of Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55, at page 521 [TAB 28 of the 6" Appellant's BOA]. The relevant portion of the Court of Appeal's Judgment pertaining to this error is now reproduced herein below:- * [26] Islam is declared by art 3(1) of the Federal Constitution to be the religion of the Federation. Religion of the Federation 3(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation. [27] The meaning of ‘Islam’ in art 3(1) is explained by the Supreme Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 (the panel comprising Salleh Abas LP, Wan Sulaiman SCJ, Seah SCJ, Hashim Yeop A Sani SCJ (as he then was) and Syed Agil Barakbah SCJ), as follows (at p 56). 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 fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial, This way of ordering the life with all the precepts and moral standards is based on divine guidance through his prophets and the last of such guidance is the Quran and the last messenger is Mohammad SAW whose conduct and utterances are revered. (See S Abdul A'la Maududi, The Islamic Law and Constitution, 7th Ed, March 1980.) The question here is this: Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century. [28] After having said the above, Salleh Abas LP, delivering the unanimous decision of the Supreme Court, proceeded to trace the history of Islam after the British intervention in the Malay States and came to the following conclusion (at p 56): 4s= 3 I= SI 3 “33 6.1.8 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. (See MB Hooker, Islamic Law in South-east Asia, 1984.) In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word ‘Islam’ in the context of art 3, Ifit had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, art 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter. [29] In short, the Supreme Court takes the position that it was the intention of the framers of our Federal Constitution that the word ‘Islam’ in art 3(1) be given a restrictive meaning. [30] But what is more important for the purpose of our judgment is the fact that art 3(4) qualifies the status of Islam in following terms: (4) Nothing in this Article derogates from any other provision of this Constitution. [31] What art 3(4) means is that art 3(1) is subject to, among others, the fundamental liberties provisions as enshrined in Part Il of the Federal Constitution. By reading the above stated Judgment of the Court of Appeal, we humbly submit that the Court of Appeal was in complete error by concluding that Article 3(1) [TAB 25 of the 6" Appellant's BOAI, is subject to the fundamental liberties provisions as enshrined in Part II of the Federal Constitution, without examining 46a a3 aI say = Sa 3 and understanding the proper scope and effect of His Lordship Tun Salleh Abbas. LP, in Che Omar (supra) [TAB 28 of the 6” Appellant's BOA]. 6.1.9 We shall now invite this Honorable Court to refer to the salient part of the Supreme Court's Judgment, in order to correct the Court of Appeal's judgment before this Honorable Court. 6.1.10 In Che Omar (supra) [TAB 28 of the 6” Appellant's BOA], a five member coram or the Supreme Court sat to hear an appeal against the mandatory death sentence passed against the appellants therein, who were charged for trafficking under the Dangerous Drugs Act, as well as for firearms under the Fire Arms (Increased Penalty) Act, respectively. 6.1.11. In the course of dismissing the respective appeal, wherein it was argued that the imposition of the death penalty under those offences, not being “hudud" or “gias’ according to Istamic Law, was contrary to Islamic injunction and were therefore, unconstitutional, vis a vis Article 3(1) Federal Constitution. His Lordship Tun Salleh Abbas, LP had in the initial portion of his judgment, correctly define the meaning of “Islam” and “Islamic religion” in Article 3(1) at pages 55-56 therein 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 fo rituals and 47Aaa IIB OM OO SEIT OM OW IVI OUO IOUT 3 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 on the ritualistic aspect by also a 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 yard-stick. 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 fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial...”. 6.1.12 With due respect, we humbly submit that the upon correctly defining the meaning of “islam” or “Islamic religion’, His Lordship made two grave errors in the rest of his judgment, which had erroneously narrowed the actual scope and effect of Article 3(1) Federal Constitution, the errors of which are as follows:- a) 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?” b) His Lordship then, in answering his self-posed question above stated, and upon summarization of the ‘history’ of Islam pre- Merdeka then wrongfully concluded at page 66 therein:- *...Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institution, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only...". 48I oI ~ -F 3°33 os 6.1.13 We humbly submit that there was no necessity for His Lordship, upon defining the meaning of “/slam” and “Islamic religion" to then ask the question as framed (para 6.1.12 (a) above) for reasons as follow: a) b) Itis 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 paragraph, does not leave any room for ambiguity. Hence, there was no need for His Lordship to then enter a ‘circuitous excalibus” exercise to look for the meaning intended by the framers. It is further submitted that His Lordship, in delivering his Judgment, failed to give any supporting authority to justify the rationale of his judgment with regards to the meaning of “Islam” or “Islamic religion’ The said exercise to look for the meaning intended by the framers, in itself is in violation of Article 11 (3)) Federal Constitution which states : * Every religious group has the right — {a) to manage its own religious affairs; ... 49a os 8 Ge 8 oe eee ee eee Ge Hence, meaning of “islam” and “Islamic religion” must be according to what the Islamic scholars decide what islam is. It definitely can not be defined as what the framers purportedly intended it to be. 6.1.14 In furtherance to the above stated case of Che Omar (supra) [TAB 28 of the 6" Appellant’s BOA], we also submit that His Lordship committed the further second error (para 6.1.12 (b)) for reasons as follows:- a) _ His Lordship summarisation of the “history” as to the position of Islam pre- Merdeka is in error, by reference to the article written by Yang Arif Dato’ Mohd Hishamuddin Bin Mohd Yunus entitled An Essay On The Constitutional History Of Malaysia (Part 1)[1995] 3 CLJ xiv (July) [TAB 29 of the 6" Appellant's BOA] b) His Lordship also committed a further error in limiting the definition of Islam under Article 3 (1)-Federal Constitution by personally making his own findings as to what Islam is meant to be, when in fact, it was for the scholars of Islam to decide. 6.1.15 Therefore it is our humble submission, for the reasons above stated, this Honorable Court must correctly conclude that the Supreme Court decision in Che Omar (Supra) [TAB 28 of the 6" Appellant's BOA] is no longer good law. 503a Hence, the declaration as to the position of Islam pursuant to Article 3 (1) Federal Constitution must rightfully be allowed to depart from Che Omar (Supra). 6.1.16 In actual fact, contrary to the erroneous view of many, that the Federal Constitution was structurally secular by relying to take support of this view from the Supreme Court decision in Che Omar (Supra) [TAB 28 of the 6” Appellant's BOA], we would humbly submit that a careful and considered analysis of that judgment will prove that Che Omar (Supra) does not in any way support that position. 6.1.17 Without going into the full details of the decision of Che Omar (Supra) [TAB 28 of the 6" Appellant's BOA], the salient portion of that judgment to point out the errors of that view is as follows: a) In Che Omar (Supra), the argument raised therein, was with regards to the voidability of the mandatory death sentence under Drug Trafficking and Fire Arms (Increased Penalties) Act vis-a-vis Article 3 Federal Constitution, in which Salleh Abas LP, said at page 66 therein, *...Article 162, on the other hand, purposely preserved the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.”. This portion of the judgment refers to secularism pertaining to the Drug Trafficking and Fire Arms (Increased Penalties) Act, and clearly not in any sao Goe ® so ereem: way intended to promote the erroneous view, that the Federal Constitution itself, is structurally secular. b) Also, at page 57 of the same judgment, His Lordship again stated that “...However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of Jaw. ...". Surely, again His Lordship in making reference to the word “secular law’, refers to Drug Trafficking and Fire Arms (Increased Penalties) Act, and not the Federal Constitution as a whole ! 6.1.18 It must also be noted that the decision in Che Omar (Supra) was delivered on 29.02.1988, some 3 months and 12 days prior to the coming into effect of Article 121(1A) Federal Constitution, on 10.08.1988. The importance of these historical dates, are that the creation of the Syariah Courts through Ins Act A704, to carry out jurisdiction over matters under Item 1, List II - State List, 9th Schedule Federal Constitution would as night follow day, mean that the decision of Che Omar (Supra), putting it at its highest, would have no relevance to the structural position of the Federal Constitution, as amended, post 10.06.1988. 6.1.19 Hence, the reasons advanced by the Court of Appeal to make Section 66 of the 1992 Enactment subject to the liberty clauses by reference to the passage of the ‘Supreme Court's judgment in Che Omar (supra) has clearly been crystallized to 52“=B oreeg omy 4 Fy a3 3 oe “a be in error by a proper and careful analysis of the said Supreme Court's judgment in Che Omar (supra), above rendered. Hence, even on this issue, the Court of Appeal had clearly fallen into legal error and therefore the Court of Appeal judgment before this Honorable Court must be reversed. 6.1.20 Also, in an article written by Mohamed Ismail Bin Mohamed Shariff tiled “The Legislative Jurisdiction of the Federal Parliament In Matters Involving Islamic Law” [2005] 3 MLJ cv [TAB 30 of the 6" Appellant's BOAJ, the writer elucidates therein that: “There is nothing in Article 3 that restricts the natural meaning of the term “Islam*. And there is no reason to circumscribe its meaning to rituals and ceremonies only. itis submitted with respect that the term must, therefore, be accorded its ordinary meaning, that is to say, Islam in all its aspects. It is suggested that what the framers of the Constitution have in fact done is to resurrect the lost or hidden power relating to Islamic law, that which was taken away by the British, and entrenched it in Article 3. As for the legislative power of the Malay Rulers, those powers which remained with them before the Constitution was drafted, was craved out of the totality of the law making power of the Federal Parliament and vested in the Legislatures by virtue of List II in the Ninth Schedule, which is discussed below. 16 It follows from this that the rest of the powers must of necessity be vested in the Federal Parliament, for it cannot reside anywhere else. In the writer's view, to relegate the meaning of the term "Islam" in Article 3 to rituals and ceremonies is, with respect, unjustified and untenable. It is tantamount to saying that "Islam" in Article 3 is otiose or unmeaning. That would offend against a basic principle of construction, that all provisions must be given a meaning that they will reasonably bear. It must not be forgotten that this is a Constitutional provision, placed in Part | and which comes immediately after the name and set up of the Federation. If the framers of the Constitution had intended to say what the leamed judge says they had in mind they could have simply worded Article 3(1) to read: "All religions may be practiced in peace and harmony in any part of the Federation." But they did not do so and that means that they must have 533 = 3 a —3 3 6.1.21 TA 7.2 intended the first part of Article 3(1) to have a different meaning and effect. It is submitted with respect that that meaning is as suggested by this writer and set out earlier in this article, namely that "Islam" in the context of Article 3 means Islam as a way of life and that its laws and doctrines and all else in the religion are an integral part of the laws of the Federation. This also means that Islamic law is naturally a part of the law of the Federation.”. In the light of the above cited declaration as to the unquestionable special position of Islam, it would then be repugnant to allow any of the Islamic laws enacted by the States, to be made subject to the liberty clauses under the Federal Constitution, which would inevitably result in those Islamic laws to be declared ultra vires, and the State powers to enact such Islamic laws, to become redundant. That would certainly defeat the special position of Islam which Article 3(1) has been taken to have declared. Islam as a basic structure of the Federal Constitution. Also, Article 3 [TAB 25 of the 6" Appellant's BOA], is recognized as one of the important basic structure of the Constitution. Basic structure doctrine is a recognized principle, which states that the Constitution has certain basic features that cannot be altered or destroyed, 54“= = 3 3 os =s = 73 TA whatsoever. In other words, the constitutional right to amend any constitution is limited to the scope that it cannot alter or destroy any basic structure. The special position of Islam is certainly a basic structure within our Federal Constitution, which has been crystallized beyond any doubts through the plethora of authorities, as referred to herein before. In the celebrated Indian case of Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala and Anor [1973] AIR [SC] 1461 [TAB 31 of the 6” Appellant’s BOA], the Indian Supreme Court declared therein that: "316. The leamed Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same...” The recognition of Islam as a basic structure of the Federal Constitution can be seen in the case of Menteri Dalam Negeri & Ors v Titular Roman Catholic Archbishop of Kuala Lumpur [2013] 6 MLJ 468 [TAB 14 of the 6” Appellant's BOAJ, in which the Court declared that: [31] It is my observation that the words ‘in peace and harmony’ in art 3(1) has a historical background and dimension, to the effect that those words are not without significance. The article places the religion of Islam at par with the other basic structures of the Constitution, as it is the third in the order of 55.= S33 3 A ao SS 3 3 = = a a | = 75 precedence of the articles that were within the confines of Part I of the Constitution. It is pertinent to note that the fundamental liberties articles were grouped together subsequently under Part II of the Constitution.” Wherefore, no clauses of the Federal Constitution, and not even the liberty clauses, could be read to have the effect of limiting the validities of any Islamic Enactments passed by the States constitutionally, since that would be an affront to Islam as the basic structure of the Constitution. (C) QUESTION 5, 6, 7 AND 8 ~ COMPLIANCE TO THE LIBERTY CLAUSES (5) (6) CATEGORY The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 5(1) of the Federal Constitution when it is clear that Section 66 is enacted within the limits of the power of the State Legislative Assembly and therefore “in accordance with law” to create punishment of offences against the precepts of Islam within the meaning of Article 5(1) of the Federal Constitution; The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 8(1) and (2) of the Federal Constitution. Firstly, when it is clear that Section 66, despite using the word “male” also refer to the female gender by virtue of Section 4(2) of the Interpretation Act 1948 and 1967. Secondly, even if 56aa c 33 ss 8.1 (7) (8) Section 66 is interpreted without falling back to Section 4(2) Interpretation Act 1948 and 1967, it is clear that Section 66 falls within the exception under Article 8(5)(a) of the Federal Constitution; The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 9(2) Federal Constitution when Section 66 does not restrict the movement of the Respondents; and The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 10(1)(a) Federal Constitution when Section 66 does not restrict the right to freedom of expression of the Respondents. However, if this Honorable Court is not with us thus far, please allow us to herein after render our submissions in addition and in the alternative, that the said Section 66 of the 1992 Enactment [TAB 5 of the 6" Appellant's BOAJ, is not in contravention to any of the related liberty clauses raised before this Honorable Court herein, i.e Article 8(1) and/or 8(2) and/or Article 5(1) and/or Article 9(2) and/or Article 10(1) (a) of the Federal Constitution, and as a consequence thereof valid and enforceable. 73 3-3 3 =3 = =| a = = oy = = = 8.2 8.3 8.4 In Malaysia, the provisions for fundamental liberties are set out in Part II of the Federal Constitution, consisting of Article 5 to 13. These include liberty of the person (Article 5), prohibition against slavery and forced labour (Article 6), protection against retrospective criminal laws and repeated trials (Article 7), equality before the law and the rights to equal protection of the law (Article 8), prohibition of banishment and fteedom of movement (Article 9), freedom of speech, assembly and association (Article 10), freedom of religion (Article 11), rights in respect of education (Article 12) and right to property (Article 13). Nonetheless, for the purpose of this Appeal, the Respondents have taken objection on the validity of the impugned Section 66 of the 1992 Enactment ITAB 5 of the 6" Appellant's BOA], on Article 8(1) and/or 8(2) and/or Article 5(1) and/or Article 9(2) and/or Article 10(1) (a) of the Federal Constitution. ITAB 32 of the 6" Appellant's BOA] We shall render our submissions under this category in order of the four remaining supportive questions in the Memorandum of Appeal, and addressed to herein after under paragraph 9 to 11 in this written submissions. 58“3 oe 2. 9.1.1 Article 5(1) [TAB 32 of the 6” Appellant's BOA] of the Federal Constitution Article 6(1) and 9(2) Federal Constitution QUESTION 5 AND QUESTION 7 Memorandum of Appeal taken together (6) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 5(1) of the Federal Constitution when it is clear that Section 66 is enacted within the limits of the power of the State Legislative Assembly and therefore “in accordance with law” to create punishment of offences against the precepts of Islam within the meaning of Article 5(1) of the Federal Constitution; (7) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 9(2) Federal Constitution when Section 66 does not restrict the movement of the Respondents; and provides: “(1) No person shall be deprived of his life or personal liberty save in accordance with law.” 59393 =3 = = = = = = 9.1.2 Article 9(2) [TAB 32 of the 6” Appellant's BOA] of the Federal Constitution 9.2 93 9.4 95 provides: (2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof. What does the word “law” in Article 5(1) and 9(2) of the Federal Constitution means? According to Article 160(2) Federal Constitution, [TAB 33 of the 6” Appellant's BOAJ, “law” is defined as: “Law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof,” Next, what does "Written law” means? “Written law” includes this Constitution and the Constitution of any State;” For completeness, * “State aw’ means— (a) any existing law relating to a matter with respect to which the Legislature of a State has power to make law, being a law continued in operation under Part XIll; (b) a law made by the Legislature of a State;” Now, before we submit on Article 5(1) and Article 9(2) [TAB 32 of the 6” Appellant's BOA] reproduced herein above, it is pertinent to examine the proper interpretation of the words “save in accordance with law” as stated in Article 60= =3 3 a3 96 97 5(1) Federal Constitution. The words “save in accordance with law’ can also be found in Article 13(1) Federal Constitution [TAB 32 of the 6"" Appellant's BOA], which provides therein that: “(1) No person shall be deprived of property save in accordance with law." The interpretation of the words “save in accordance with law’ is described in the judgment of His Lordship Hashim Yeop A. Sani, in the Federal Court case of S.Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] MLJ 204, at page 206 [TAB 34 of the 6" Appellant's BOA], which stated therein that; “ The words “save in accordance with law" appear twice in our Constitution namely in Article 5(1) relating to liberty of the person and Article 13(1) relating to deprivation of property. Article 13(1) in my opinion ensures the sanctity of private property. That clause guarantees the right of any person not to be deprived of his property save in accordance with law which simply means that no one can be deprived of his property merely on the orders of the Executive but that he may be deprived of his property only in accordance with law...". In the case of Government of Malaysia v Selangor Pilot Association [1977] 1 MLJ 133 [TAB 35 of the 6" Appellant's BOA], in which His Lordship Viscount Dilhorne (delivering the majority decision of the Board) stated therein at page 135-166 that: 61=3 =3 co) 3 =) 98 9.9 “Their Lordships agree that a person may be deprived of his property by a mere negative or restrictive provision but it does not follow that such a provision which leads to deprivation, also leads to compulsory acquisition or use. It in the present case the Association was in consequence of the amending Act deprived of property, there was no breach of Article 13(1) for that deprivation was in accordance with a law which it was within the competence of the Legislature to pass.”. In relation to Article 5(1) and 9(2) Federal Constitution [TAB 32 of the 6" Appellant's BOA], by applying the principle stated in Selangor Pilot Association (supra) [TAB 35 of the 6" Appellant's BOA] and S.Kulasingam (Supra) [TAB 34 of the 6" Appellant's BOA], the 6" Appellant submits that the fundamental right under Article 5(1) Federal Constitution is not absolute and this right can be taken away by law duly passed by Parliament and/or State Legislature, save in accordance with law. Thus, Section 66 of the 1992 Enactment is therefore a valid law and constitutional, In furtherance to the above, we invite this Honourable Court to refer to the case of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72 [TAB 36 of the 6" Appellant's BOA], at page 101, in which the Federal Court decided therein that: “In our view, the words ‘personal liberty’ should be given the meaning in the context of art 5 as a whole. In this respect, we adopt what has been said by Suffian LP in Loh Wai Kong. Speaking for the Federal Court, comprising five Federal Court judges in deciding whether a citizen has a right to leave the 62= a ee a ma TI TwWT SAT SIO TI OI 9.10 country, to travel overseas, and a right to a passport, this is what he said (at p 34): Article 5(1) speaks of personal liberty, not of liberty simpliciter... It is well Settled that the meaning of words used in any portion of a statute —- and the same principle applies to a constitution-- depends on the context in which they are placed, that words used in an Act take their colour from the context in which they appear and that they may be given a wider or more restricted meaning than they ordinarily bear if the context requires. In the light of this principle, in construing ‘personal liberty’ in art 5(1) one must look at the other clauses of the article, and doing so we are convinced that the article only guarantees a person, citizen or otherwise, except any enemy alien, freedom from being ‘unlawfully detained’; the right, if he is arrested, to be informed as soon as may be of the grounds of his arrest and to consult and be defended by his own lawyer; the right to be released without undue delay and in any case within 24 hours to be produced before a magistrate; and the right not to be further detained in custody without the magistrate’s authority. It will be observed that these are all rights relating to the person or body of the individual, and do not, in our judgment, include the right to travel overseas and to have a passport. Indeed freedom of movement is dealt with specifically in art 9 which, however, only guarantees citizen (but not the non-citizen) the right to enter Malaysia, and, subject to the special immigration laws applying in Sabah and Sarawak and to other exceptions set out therein, to move freely within the Federation and to reside anywhere therein.”. Based on the principle enunciated in the Sugumar Balakrishnan (supra) [TAB 36 of the 6" Appellant's BOA] with regards to Article 5(1) Federal Constitution, it can be submitted that the proper interpretation of the word “life” or "personal liberty” in Article 5(1) is only confined to those rights stated in the above passage of the judgment and thus exclude the right to livelihood as contended by the Respondents. 639.11 9.12 9.13 In addition to the above and with specific regards to Article 9(2) Federal Constitution, we would invite this Honorable Court to refer to the case of Assa Singh v Mentri Besar Johore [1969] 2 MLJ 30 at p 47 [TAB 37 of the 6” Appellant's BOA], His Lordship, Raja Azian Shah, J observed therein that: “...The rights protected by article 9 clause (2) are not absolute rights. They may be subordinated to the larger social interests, As Holmes J. used fo say: ‘In a complicated society there are no absolutes." Each of these rights is liable to be curtailed by laws made by Parliament to the extent mentioned in clause (2) read with clause (3), that is, in the interest of the security of the Federation, public order, public health, or the punishment of offenders, restricting freedom of movement or residence between a State and other States. If these rights are absolute rights then Parliament would be completely debarred from making any law taking away or abridging any of those rights. The net result is that the unlimited legislative power of Parliament given by article 74 is cut down by the provisions of article 9 clause (2) and clause (3) and all laws made by Parliament with respect to these rights must, in order to be valid, observe these limitations..." Wherefore, the Respondents reliance on Article 5(1) and 9(2) of the Federal Constitution [TAB 32 of the 6" Appellant's BOA] to invalidate Section 66 of the 1992 Enactment [TAB 5 of the 6" Appellant's BOA], is clearly without any basis in law. In further support to the above, we humbly submit that the Court of Appeal had erroneously in its judgment, referred to various aspects on how Section 66 of the 1992 Enactment purportedly interfered with the Respondents’ fundamental 64303 = aa AAI A AIA ST OO SO SS eS ss 3 10. liberties under paragraph 40 to 83 of the Court of Appeal’s judgment. If this Honorable Court is with us that the liberty clauses (particularly Article 5(1) and/or 9(2) and/or 8(1) and/or 8(2) and/or 10(1)(a) referred to by His Lordship Mohd Hishamudin, JCA) under Part Il of the Federal Constitution can not limit or effect the Islamic law validly enacted by the State Legaislative Assemblies, then clearly His Lordship Mohd Hishamudin, JCA fell into error in ignoring the validity of such Islamic laws without the need for it to be tested on the liberty clauses under Part Il of the Federal Constitution. Article 8 (1) and 8 (2) Federal Constitution. QUESTION 6 of the Memorandum of Appeal. (6) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 8(1) and (2) of the Federal Constitution. Firstly, when it is clear that Section 66, despite using the word “male” also refer to the female gender by virtue of Section 4(2) of the Interpretation Act 1948 and 1967. Secondly, even if Section 66 is interpreted without falling back to Section 4(2) Interpretation Act 1948 and 1967, it is clear that Section 66 falls within the exception under Article 8(5)(a) of the Federal Constitution; 65“7 3 “3 -= Ia: ceeeccere ay aOa3 aA 37 10.1 Article 8 of the Federal Constitution [TAB 32 of the 6" Appellant's BOA] states: “(()All persons are equal before the law and entitled to the equal protection of the law. (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. (3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State. (4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority. (8) This Article does not invalidate or prohibit-— (a) any provision regulating personal law; (0) any provision or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion; (0) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service; (d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election; (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day; (f) any provision restricting enlistment in the Malay Regiment to Malays.” 66aA oO za ao = RIB SOO SBI 7a aI = = 3 10.2 In the celebrated case of Datuk Haji Harun bin Hj Idris v Public Prosecutor [1977] 2 MLJ at page 165-166 [TAB 38 of the 6" Appellant's BOA], in which His Lordship Suffian L.P, had at page 165-166 therein, declared: “1. The equality provision is not absolute. It does not mean that all laws must apply uniformly to all persons in all circumstances everywhere. 2. The equality provision is qualified. Specifically, discrimination is permitted within clause (5) of Article 8 and within Article 153. 3. The prohibition or unequal treatment applies not only to the legislature but also to the executive -~ this is seen from the use of the words ‘public authority" in clause (4) and “practice” in clause (5)(b) of Article 8. 4. The prohibition applies to both substantive and procedural law. 5. Article 8 itself envisages that there may be lawful discrimination based on classification —- thus Muslims as opposed to non-Muslims (para. (b) of clause (5) of Article 8); aborigines as opposed to others (para. (c)); residents in a particular State as opposed to residents elsewhere (para. (d)); and Malays and natives of Borneo as opposed to others who are not (Article 153). 6. In India the first question they ask is, is there classification? If there is and ‘subject fo other conditions, they uphold the law. If there is no classification, they strike it down, With respect, we would agree with the Solicitor-General’s submission that the first question we should ask is, is the law discriminatory, and that the answer should then be—if the law is not discriminatory, if for instance it obviously applies to everybody, it is good law, but if it is discriminatory, then because the prohibition of unequal treatment is not absolute but is either expressly allowed by the constitution or is allowed by judicial interpretation we have to ask the further question, is it allowed? If it is, the law is good, and if it is not, the law is void. 7. In India discriminatory law is good law if it is based on “reasonable” or “permissible” classification, using the words used in the passage reproduced above from the judgment in Shri Ram Krishna Dalmia, provided that: 67—=3 3 SBI IIA SS 10.3 10.4 (the classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group; (ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question...” The approach taken by the Federal Court in Datuk Hj. Harun Bin Idris v PP [TAB 38 of the 6" Appellant's BOA] has been followed in the case Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia, intervener) [2004] 2 MLJ 257 [TAB.39 of the 6" Appellant's BOA], in which Augustine Paul JCA declared therein at para 59 that, *...The law that we have referred to thus far makes it clear beyond doubt that there will be a violation of art 8(1) only if a legislation does not apply to a person who is similarly circumstanced as the other persons in the classification —- and not to someone like the appellant outside it. Hence, the 6” Appellant submits that Article 8(1) of the Federal Constitution [TAB 32 of the 6" Appellant's BOA] does not preclude from making reasonable classification of categories, so long as there is no discrimination among the members of that category. 6810.5 10.6 10.7 It is pertinent to note that Article 8(5) of the Federal Constitution [TAB 32 of the 6" Appellant's BOA] provides lawful discrimination based on classification. it provides: * (5) This Article does not invalidate or prohibit-— (a) any provision regulating personal law; (b) any provision or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion; (0) xx (A) xxx (e) xxxx (f) xxxx” In an article written by Dr. Mahamad Bin Arifin tiled “Islam Dalam Perlembagaan Persekutuan”, which was published in a book titled “Perkembangan Undang-Undang Perlembagaan Persekutuan” at page 115, [TAB 40 of the 6" Appellant's BOA], therein stated that:- “ Undang-undang Islam menurut Perlembagaan bolehlah ditakrifkan sebagai undang-undang diri (personal law) yang tidak mempunyai kuasa menyeluruh tetapi hanya boleh dikuatkuasakan terhadap orang-orang Islam sahaja...” In an article written by Mohamed Ismail Bin Mohamed Shariff titled “The Legislative Jurisdiction of The Federal Parliament in Matters Involving 69aaa aoe 3 Islamic Law" [2005] 3 MLJ cv [TAB 30 of the 6" Appellant's BOAJ, in which the author observed therein that: *... Bearing in mind the principles of interpretation discussed above, it would be instructive to look at the State List first. What is its scope? The question is, how is the expression "Islamic law and personal and family law of persons professing the religion of Islam" fo be interpreted? Is it to be read and understood as — () "Islamic law and personal and family law of persons professing the religion of Islam" as one expression, that is to say, Islamic law only in so far as it relates to the personal and family law of Muslims; or (ii) "Islamic law" alone disjunctively, and then "personal and family law of persons professing the religion of Islam" separately, to the effect that the expression "Islamic law" would encompass the entire body of Islamic faw, relating to both personal law as well as other areas, and ‘personal and family law of persons professing the religion of Islam" as dealing with only the personal law of Muslims? A question arises here: if ‘Islamic law" covers the whole body of Islamic law in respect of which the Legislature can enact laws, why then would it be necessary to enumerate a whole list of matters over which the States have the power to legislate? It would be tautologous and inappropriate in a document such as the Constitution. This must, therefore, mean that "Islamic law" in that paragraph is not to be interpreted as standing by itself, that is to say, disjunctively but as a part of the one expression as in (i) above. It will be remembered that Clause 74(4) of the Constitution says that where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter. A superficial reading of this section would lend support to the argument that the term “Islamic law’ in Paragraph 1 should not be limited by the specific expressions that follow it in the Paragraph. However, it is submitted that in the context of Paragraph 1 “Islamic law" should not be read in isolation as that would lead to an absurd result as discussed in (ii) above. Rather the whole expression in “Islamic law and personal and family law of persons professing the religion of Islam" has to be read together. When read in this manner it falls harmoniously into place with the rest of the Paragraph and the Ninth Schedule as a whole. The effect of Clause 74(4) on this Paragraph would be that the Islamic law 70= 732 3 =a 3m 10.8 10.9 applicable to Muslims shall not be confined to the matters of Islamic personal law enumerated in that Paragraph only but should also include other Islamic personal laws not so enumerated. Based on the above cited authorities, we humbly submit that Section 66 of the 1992 Enactment was made in accordance with Islamic law, in reference to ‘Hukum Syarak and personal law of the Muslims. We further submit that the non- Muslims cannot, by way of liberty clauses challenge the validity of Section 66 of the 1992 Enactment because Islamic law is the personal law of Muslims and shall exclude the non-Muslims. As decided in Datuk Hj Harun Bin Idris (supra) [TAB 38 of the 6" Appeliant’s BOA], that the classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group and the differentia has a rational relation to the object sought to be achieved by the law. Also, in the case of Public Prosecutor v Khong Teng Khen [1976] MLJ 166 at page 170 [TAB 41 of the 6"" Appellant's BOA, in which His Lordship Suffian LP declared: “The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstances, nor that it ‘must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons....for the purpose of legislation...” The Learned Judge of the Court of Appeal fell into the error of finding that Section 66 is not personal law, completely in contradiction to the authorities and articles referred to herein above. For ease of reference, we reproduce herein nI SIS 33 3 I43-3 — under the relevant portion of His Lordship Mohd Hishamudin, JCA in the Court of Appeal which will demonstrate this erroneous finding of the Court of Appeal, the salient portion of the judgment are as follows: * [60] With respect, we are unable to accept the argument of Encik Iskandar Dewa, the learned State Legal Adviser ofNegeri Sembilan, that s 66 is ‘personal law’ for the purpose of cl (5)(a) of art 8. This cl (5)(a) of art 8 permits the making of personal laws that discriminate on account of gender or other factors that are enumerated in cl (2) of art 8. It states: (5) This Article does not invalidate or prohibit ~ (a) any provision regulating personal law; [61] It must be appreciated that s 66 is not enacted pursuant to the particular sub-item of Item 1 of List I! of the Ninth Schedule that refers to personal law: Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating fo succession, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; [62] Section 66 is in fact enacted pursuant to that particular sub-item of Item 1 of List II that states: .. creation and punishment of offences by persons professing the religion Of Islam against precepts of that religion ... [63] Thus s 66 is not personal law.”. 10.10 Hence, it is submitted that, if the law which discriminates is based on reasonable classification, it is valid law. Thus, we humbly submit that Section 66 of the 1992 Enactment does not in any way contravenes Article 8(1) or 8(2) of the Federal Constitution and therefore not unconstitutional. 72“= 3 S88 2 3-3 Bee fee 11.2 11.3 Article 10 (1) (a) Federal Constitution. QUESTION 8 of the Memorandum of Appeal. (8) The Learned Judges of the Court of Appeal erred in law in holding that Section 66 is inconsistent with Article 10(1)(a) Federal Constitution when Section 66 does not restrict the right to freedom of expression of the Respondents. It also seems that the Respondents further contended that the Section 66 of the 1992 Enactment [TAB 5 of the eh Appellant's BOA] was unconstitutional since it purportedly infringed Article 10(1)(a) of the Federal Constitution [TAB 32 of the 6" Appellant's BOA]. Article 10(1)(a) Federal Constitution reproduced hereinafter shows [TAB 32 of the 6" Appellant's BOA]: * (1) Subject to Clauses (2), (3) and (4)— (a) every citizen has the right to freedom of speech and expression; (b)xx; (c)xxx.", Clause 2 (a) of Article 10 Federal Constitution further provides that: *(2) Parliament may by law imposed — (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges BaI oO 2 aI So) 3 24 4 353 43 ™_ 11.4 11.5 of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;”. Based on the various authorities with regards to the constitutionality powers of the State Legislative Assemblies to enact Islamic laws and to restrict and/or to limit any acts and conducts of any individual Muslim professing the religion of Islam for the benefit of the religion and the communal Muslims rights, then, it can not be denied that Section 66 of the 1992 Enactment is a morality law governing the affairs of the Muslims and such restrictions imposed by the State Legislative Assembly is necessary or expedient in the interest of Muslims community and/or *...morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence;”. Hence, we humbly submitA that Islamic law, being the personal law of the Muslims is a morality law to govern the conduct and affairs of the individual Muslim as well as to protect the privileges of the State Legislative Assemblies against any possible threat and/or *...contempt of court, defamation, or incitement to any offence.". The purpose of restrictions imposed by the State Legislative Assembly in relation to the offence created under Section 66 of the 1992 Enactment is to ensure that the Muslims can act in conformity with the moral law. Therefore, we humbly submit that since the State Legislative Assembly has jurisdiction and power to enact Islamic law and Islamic law is also undeniably a morality law, thus Article 10(2) of the Federal Constitution shall be 74Ios = oe | Gee tee) te 3 ecco ae 12. 12.1 applicable to restrict the rights of the Respondents, being the Muslims, for the purpose stated herein above. CONCLUSION In the light of all the above rendered submissions, the 6” Appellant shall humbly submit as follows: a) That this Appeal should be allowed on the basis that the Respondents had failed on the procedural aspect, since the Respondents did not bring the constitutional challenge on the validity of Section 66 of the 1992 Enactment correctly before the Federal Court pursuant to Article 4(4) of the Federal Constitution, and that the Court of Appeal was not seized with jurisdiction to entertain the Respondents’ appeal therein; and in addition and/or in the alternative thereto b) That this Appeal should be allowed on the basis that Section 66 of the 1992 Enactment does not need to be tested on its validity based on the liberty clauses under Part Il of the Federal Constitution; and in addition and/or in the alternative thereto ayt t " t > 2 I! c) That this Appeal should be allowed on the basis that Section 66 of the 1992 Enactment is not in contravention of Articles 5(1) and/or 8(1) and/or 8(2) and/or 9(2) and/or 10(1)(a) of the Federal Constitution, and therefore a valid and constitutional law. We are very much obliged. Date: 30" July 2015. Counsel for the 6” Appefiant The 6th Appellant's Written Submission is filed by Messrs. Azaine & Fakhrul of Unit No. 07/3, Tingkat 4, Blok C, Garden City Business CentreTaman Dagang, 68000 Ampang, Selangor. Tel: 03-42704733 Fax: 03-42705322 76