96. functions tantamount to an abuse of the process of court. The applicants were abusing the process of court in attempting to delay advancement of the inquiry and any subsequent deliberations or decisions to be made by the SC. This court must not be privy to the abuse. On this ground, the application ought to be dismissed by this court. In another case decided on the same date but in the High Court of Sabah & Sarawak, Joan Goh Penn Nee v Inquiry Committee [2015] 6 CLJ 357 [Tab 2, Volume 4 ABOA] Justice Stephen Chung was faced with an application for judicial review pursuant to O. 53 of the Rules of Court 2012 to, inter alia, quash the ruling made by the respondent which was made in an inquiry hearing on the complaint made that the applicant, inter alia, overcharged for the services rendered and that she unilaterally deducted the sum of RM200,000 and failed to pay the sum. In dismissing the application for judicial review, his Lordship has this to say: *[29] The inquiry committee has not commenced any proceedings against the applicant. In the proceedings the advocate will have an opportunity of showing cause against such order. In that application the advocate has 53the opportunity to challenge _ the _ legality, unreasonableness or correctness of the findings or decisions of the inquiry committee. The judge in chambers may decide to set aside the findings of the inquiry committee [30] The Advocates Ordinance is to regulate the admission of persons as advocates and to make provisions for matters relating thereto including admission and enrolment as advocates, the right to practise in Sabah, the rules in respect of ethics and accounts and the right and liability of an advocate. The Ordinance also set out the procedure for disciplinary action to be taken and for remedies thereto. Where there are specific procedures and remedies provided in the Advocates Ordinance, which are equally convenient and fectual which are available to an advocate, he must avail himself or herself of these procedures and remedies. [31] Therefore these are the alternative specific procedures and remedies available to the applicant instead of resorting to judicial review, in particular under the Advocates Ordinance which is specifically applicable to the legal profession in Sabah. The 54applicant has not availed herself to these specific procedures and remedies, has not pursued and has not exhausted these specific procedures and remedies as an advocate which she is bound to do so. No explanation was given. No explanation was also given why she chose to apply for judicial review when these specific procedures and remedies are available and applicable to her: see Lee Mok Lan (f) v. Registrar of Titles, Selangor [1955] 1 LNS 48; [1955] 1 MLJ 97; Re Application by Hamid bin Hassan; Hamid bin Hassan v. Returning Officer, Karak & Ors [1979] 1 LNS 87; [1979] 2 MLJ 183; Koh Mui Tee v. Chin Lee & Ors [2014] 1 LNS 966; [2014] 6 AMR 107. Clearly this application for judicial review is premature and not competent. [32] For the reasons given that the applicant must avail herself of the specific procedures and remedies enacted in the Advocates Ordinance instead of applying for the judicial review, there is no need for me to deal with the two other preliminary objections raised by the respondent. Therefore the application for the judicial review is refused _and_no order for costs in this application. Costs should be decided in the disciplinary proceedings. 5597. In the case of HSBC Bank Malaysia Berhad v Menteri Sumber Manusia, Malaysia & Anor [2011] 1 LNS 106 [Tab 3, Volume 4 ABOA], Justice Aziah Ali (as she then was) in delivering the judgment for a Judicial Review application for an order of certiorari to quash part of the decision of the 1st Respondent, the Minister of Human Resources, Malaysia made under section 9(5) of the Industrial Relations Act 1967 where the decision of the Ist Respondent which the Applicant seeks to quash reads “Manager Band 4, Manager Band 5 and Manager Band 6 are employees that are not employed in the managerial, confidential or security capacity”, her ladyship has this to say: “Whether the application is premature [18] I refer to the Court of Appeal case of Ketua Pengarah Kesatuan_Sekerja, Malaysia v. Evergreen Laurel Hotel (M) Sdn Bhd [2010] 8 CLJ 413; [2010 LNS 362 [Tab 4, Volume 4 ABOA], which was an appeal against the decision of the learned judicial commissioner who had, pursuant to the application of Evergreen Laurel Hotel (M) Sdn Bhd (“the hotel’), granted an order of certiorari to quash the DGTU’s decision that the membership check be done by the “verification method”; and an order of mandamus 56directing the DGTU to use the “secret ballot” instead. In his judgment Low Hop Bing JCA referred to the case of Kaneka Paste Polymers Sdn Bhd v. Director General of Industrial Relations & Ors (supra) [Tab 5, Volume 4 ABOA] which counsel for the 2nd Respondent herein cited in support of his submissions that the present application is premature. In his judgment Low Hop Bing JCA said as follows:- In our view, s. 9 comprehensively deals with the ‘Recognition and Scope of Representation of Trade Unions’. It is pertinent to point out that s. 9(1) to (4C) prescribe the procedure, process and__ practice (collectively, “the procedure) to be adopted by the DGIR and the DGTU in considering a trade union’s application for recognition. However, the power to accord recognition can only be made by the Minister under s 9(5). Our view is reinforced by a number of judicial pronouncements on the procedure established under s. 9. Our courts have made it abundantly dear that the decision as to whether to accord recognition lies singularly with the Minister under s. 9(5). The act of the DGTU on membership check, being part of the procedure 57for recognition, is only an administrative act towards the final decision of the Minister under s. 9(5) The DGTU’s act is merely part and parcel of the procedure for recognition. That being the position, the DGTU’s act is not subject to judicial review. Only the Minister’s decision is judicially reviewable. The hotel’s application filed in the High Court before a decision was made by the Minister under s. 9(5) is clearly against the intent and spirit of the Industrial Relations Act 1967; and hence against public policy The hotel ought to have proceeded under s. 9(5) and waited for the Minister to make a decision thereon. It is only thereafter that the hotel_may seek judicial review under 0. 53: see Kaneka Paste Polymers Sdn Bhd v. Ketua Pengarah Perhubungan Perusahaan & 2 Ors [2005] 1 LNS 276. In_the circumstances, we hold that the hotel’s application before the High Court was premature. The Court of Appeal affirmed the judgment of Siti Norma Yaakob J (later CJ(Malaya) in Syarikat Emerald Tiles Sdn Bhd y. Menteri Bumh dan Tenaga Rakyat & Anor 58(The Non-Metallic _Mineral__Products Manufacturing Employees Union, Intervener) [1994] 4 CLJ 906 HC [Tab 6, Volume 4 ABOA], wherein Her Ladyship held that when the DGTU was conducting the membership check, he was merely performing an administrative act_and that when the recognition issue could not be resolved, that issue was referred to the Minister for decision on whether to award recognition under s. 9(5). It was only after the Minister’s decision that the applicant could seek to quash it by certiorari. [19] Based on the abovementioned authorities an application for judicial review made before any decision on recognition is made by the 1s Respondent is premature and merely serves to fragment the decision-making process. In the case of Taylor’s College Sdn Bhd vy. Ketua Pengarah Kesatuan Sekerja Malaysia & Ors [2009] 5 CLJ 153; [2009] 1 LNS 178 [Tab 7, Volume 4 ABOAJ, Suriyadi Halim Omar JCA said in his judgment as follows:- this appeal could also be dismissed on the ground that the judicial review application by the appellant merely served to fragment the decision making process and hence premature. We were not 59convinced that a ‘decision’ existed here that was amenable to judicial review in the context of judicial or administrative proceedings. The decision of the first respondent could not be said to have effectively disposed of the matter whereby its decision was final and determinative of the issue under consideration. . the dispute between the parties before us relate to a claim of recognition, with the first respondent’s decision merely determining the question of the Union’s competence to represent the appellant’s employees. Section 9 of the Act clearly specifies that the power to accord recognition rest on the Minister. [20] I agree with counsel for the 2nd Respondent that this application is premature as the decision made by the Ist Respondent which the Applicant seeks to quash is not a final decision on recognition under section 9(5) of the Act. For the same reason I am of the view that it is not necessary to make any determination on the issues raised in relation to the actions undertaken by the DGTU and the DGIR. For the reasons stated the application is dismissed” 6098. In the leading case of Ottavio Quattrocchi v. Menteri Dalam Negeri, Malaysia & Ors (No 3) [2002] 8 CLJ 725 [Tab 8, Volume 4 ABOA] that discussed the principle of prematurity in Malaysia, Justice Abdul Aziz Mohamad in dismissing the application for Judicial Review in relation to, inter alia, an application for certiorari to quash an order by the Minister pursuant to ss. 3 and 12(3) respectively of the Extradition Act 1992, and a warrant of apprehension by the learned Magistrate pursuant to s. 13(1) thereof, following which the applicant was arrested and made to face committal proceedings in the Sessions Court under s. 19 of the Act, it was held that “In the light of the cases that I have considered, and in view of the fact that s. 19 of the Act provides adequate avenue for challenges to the extradition process, I am of the opinion that, judicial review being a discretionary remedy, a pre-committal application for judicial review of the extradition process is premature and ought not to be entertained unless there is a good reason for seeking judicial review or it is clear that the committal proceedings must fail for reasons such as that the act challenged is done by the wrong person or the offence specified is not an extradition crime. No good reason has been shown by the applicant and neither do I find 6199 that this is a clear case that the committal proceedings must fail in the sense intended by the Privy Council in the Bowe cas: In the judgment, His Lordship made an evaluation of the authorities relied by the Respondents in support of the prematurity argument. The pertinent remarks made by his Lordship at page 732-735 on the case of United States of America v. Frederick Nigel Bowe [1990] 1 AC 500 [Tab 9 Volume 4 ABOAJ are as follows: “The first is a statement by the Privy Council in Government of the United States of America v. Frederick Nigel Bowe [1990] 1 AC 500, which was an appeal from the Court of Appeal of the Bahamas in the matter of the fugitive Bowe whose extradition from the Bahamas was sought by the U.S. Government to face charges for drug- related offences. The U.S. Government wanted to try him for, inter alia, conspiracy to import cocaine. The effort to extradite the fugitive had necessitated the issuance at different times of several orders by the Bahamian authorities and of several magistrate’s warrants which resulted in several court proceedings at different levels. The effort culminated in several 62appeals to the Privy Council by both the U.S. Government and the fugitive, which were about costs and the question of extradition. The statement relied on by Dato’ Das, which I shall quote subsequently, was made in relation to the question of extradition and had reference to only an episode, a later one, in the history of the effort to extradite Bowe. But before I bring that episode into focus, I should like to mention an earlier episode because it also involved the question of prematurity although the said statement of the Privy Council was not, to my understanding, made in reference to that earlier episode. An order under s. 7 of the Extradition Act 1870 of England requiring the magistrate to issue a warrant for the apprehension of the fugitive had been issued by the Bahamian Minister of Foreign Affairs instead of, as it should have been, by the Governor-General. The warrant was duly issued and the fugitive was arrested and subjected to extradition proceedings before the magistrate, who ruled that the fugitive had a case to answer. On an application for leave to apply for orders of certiorari_and_ prohibition, the Supreme Court (the superior court of first instance) ruled that the application was premature since the proceedings 63before the magistrate were incomplete. The fugitive succeeded in his appeal to the Court of Appeal against that ruling and his application was remitted to the Supreme Court for hearing. The Supreme Court quashed the magistrate’s court proceedings on the ground that the order to the magistrate must be signed by the Governor-General. See pp. 514 H to 515 D. So at that stage in the extradition history, there were no more court proceedings relating to the extradition of the fugitive. I_mention that episode to show that the Bahamian Court of Appeal did not agree with the Supreme Court that because the extradition proceedings were incomplete the Supreme Court ought not to entertain the fugitive’s application for orders. certiorari and prohibition. The episode to which the said statement of the Privy Council referred occurred after that episode. Another order, a third order, to the magistrate was issued, this time, correctly, by the Governor-General. See p. 515 E. The magistrate issued another warrant and the fugitive was again arrested, and presumably extradition proceedings commenced before the magistrate’s court. The fugitive sought and obtained leave from the 64Supreme Court to apply for orders of certiorari_and prohibition to quash the warrant and the proceedings before the magistrate’s court. See p. 515 E-G. The application was heard by the Supreme Court and was refused. See p. 516 B. The fugitive appealed to the Bahamian Court of Appeal, who allowed the appeal and granted an order of certiorari to bring up and quash the warrant and the proceedings pursuant thereto. See page 516 C-D. The U.S. Government appealed to the Privy Council. The main question in the appeal was whether conspiracy to import cocaine was an offence in respect of which a warrant could be issued. See p. 516 E-F. The appeal was allowed, meaning that the extradition proceedings should be completed. The statement of the Privy Council came immediately after their Lordships had disposed off the issues concerning the extradition aspect of the appeals in favour of the U.S. Government. It appears at p. 526 F-H as follows: The way in which the proceedings before the magistrate were interrupted in order that the fugitive might apply to the Supreme Court for orders of certiorari_and prohibition has meant that their Lordships’ decision in 65the extradition appeal does not achieve finality, since the evidence against him remains to be heard and considered. Their Lordships here take the opportunity of saying that, generally speaking, the entire case including all the evidence which the parties wish to adduce, should be presented to the magistrate before either side applies for a prerogative remedy. Only when it is clear that the extradition proceedings must fail (as where the order to proceed is issued by the wrong person) should this practice be varied. The statement is about prematurity. It means that to the Privy Council an application for a prerogative remed: would be premature if it is made before the entire case for extradition has been presented to the extradition court, An application for a prerogative remedy made before the entire extradition case is presented to the extradition court is nevertheless appropriate when it is clear that the extradition proceedings must fail. An example of that is given, that is where the order to proceed is issued by the wrong person, but there can be other examples. The basis for the statement, as I understand it to be from the way in which the statement is put, is purely one of practicality having to do with economy of judicial time. 66If judicial review is sought in a case where it is clear that the extradition proceedings must fail, judicial review will be granted and that will be the end of the extradition proceedings. Otherwise, judicial review may not be granted, and the extradition proceedings will have to go on. Better, therefore, to let the extradition proceedings go on to completion uninterrupted by judicial review, so that there will in all only be one application for judicial review, the one after the end of the extradition proceedings.” 100. Further in his Lordship judgment, another analysis is made for the case of Regina v Secretary of State for the Home Department, Ex parte Gilmore [1999] QB 611 [Tab 10 Volume 4 ABOA] which also on the point of prematurity His Lordship has this to say: In Regina v. Secretary of State for the Home Department, Ex parte Gilmore [1999] QB 611, the fugitive applicants sought judicial review by way of certiorari to bring up and quash the Home Secretary’s orders to proceed for their extradition to the United States of America on the ground that the offences specified in the orders were not extradition crimes. The 67Divisional Court of the Queen’s Bench Division found that the offences were not extradition crimes and quashed the orders to proceed. All that the court had to do to arrive at its decision was to look at the orders and consider the law, that is the relevant statutory provisions, the relevant provisions of the relevant Treaty and the relevant authorities. This was what Lord Bingham of Cornhill CJ, delivering the judgment of the Divisional Court in Regina _v. Secretary of State for the Home Department, Ex parte Norgren [2000] 3 WLR 181 [Tab 11, Volume 4 ABOA] said at p. 193 H - 194 B in reference to Ex parte Gilmore: “If in his order to proceed the Home Secretary specifies an offence or offences which are not included within the relevant statutory provision or Treaty, the order is on its face unlawful and we do not doubt that the subject of such an order may apply to the court forthwith to quash it. Such was the case in Reg. v. Secretary of State for the Home Department, Ex parte Gilmore _[1999, B 611: certiorari_was granted and it does not appear to have been argued on behalf of the Home Secretary that such relief was 68101 inappropriate or premature. It would indeed seem wrong for anyone to be subjected to arrest and possible confinement, and to be obliged to contest proceedings, where the initiating document shows on its face a clear excess of jurisdiction.” ‘The court in Ex parte Norgren viewed Ex parte Gilmore as an appropriate case for judicial review because “the initiating document shows on its face a clear excess of jurisdiction”. As far as the material for the case was concerned, the court, as I said, had only to look at the orders and what was specified in them as extradition crimes.” In the case of_Sugumar Balakrishnan v. The Chief Minister Of The State Of Sabah [1988] 2 CLJ (Rep) 446 ‘Tab 12, Volume 4 ABOA], Justice Abu Mansor Ali in dismissing the leave under 0.53 Rules of High Court 1980 held that: “With respect I was of the view, as I have said, that the authorities cited may be relevant for certiorari but were irrelevant and were of no assistance to answer the issue before me whether at that stage an injunction can be given against the Chief Minister, a member of the 69Administration or a person acting under the general authority of the State Authority. That being the case, I did not consider these authorities cited to me in coming to the decision I finally did. They are irrelevant because there was then no order to quash as the State Authority has yet to consider and decide on the applicant’s notice to show cause. The applicant, to my mind, misconceived the application and went to submit on the basis as if the respondent had made a decision in this matter. I then proceeded to consider the relevant question before me whether or not at that stage, I could grant the applicant’s application for leave. It is clear that O. 53, Rules of the High Court 1980 requiring leave be granted is to prevent unnecessary applications being made. I considered that the respondent issued his notice to show cause on the 7 December 1987. The notice gave applicant one week within which to show cause why the Exemption Order 1984 should not apply to the applicant. The applicant filed his application for leave on 8 December 1987 and we heard it on 11 December 1987. It is clear that the respondent or to be exact the State Authority under that Order has still to decide and make a decision in the matter of the applicant’s notice to show cause. Since para. 2 of the Non-Application of 70I. 102 103 Exemption Order 1984 speaks of the power being the power of the State Authority to publish in the said gazette, in short the applicant’s action is in truth against the State Authority or the State Government of Sabah.” Gist of the Apprehension, Detention and Syariah Court Proceedings against the Respondents . The first Respondent was apprehended and charged in the Syariah Court for a number of times. On two occasions where the first Respondent was charged under Section 66 of the Syariah Criminal Enactment, he pleaded not guilty and claimed trial (refer to page 163-183 of Jilid 2 ROA). It should be noted that the case against the first respondent was never heard in the State Syariah Court. The same situation can be observed in regards of the second Respondent whereby he was arrested two times and was charged under Section 66 of the same enactment. He pleaded not guilty and claimed for trial. However the case was never heard before the state Syariah Court. (refer to page 185-196 of Jilid 2 ROA). m1104. The third Respondent was also arrested and detained by officers of the State Religious Affairs Department. He was charged once under the same Section 66. The case was never heard by the Syariah Court (refer to pages 197-207 of Jilid 2 ROA Ill. Procedure for a Criminal Offence at the State Syariah Courts 105. For the purpose of this submission, the jurisdiction and the basic system of the Syariah Criminal Procedure that regulates criminal matters in the State Syariah Courts will be laid down to illustrate the process that will be undertaken should the charges under Section 66 of the Enactment against the Respondents be heard in the State Syariah Court. 106. Article 121 (1A) of the Federal Constitution provides the Syariah Court with Exclusive Jurisdiction to try an offence under any Islamic Law enacted by the State Legislature. The Federal Court in the case of Hj Raimi bin Abdullah v Siti Hasnah Vangarama bt Abdullah and another appeal [2014] 3 MLJ 757 [Tab 13, Volume 4 ABOA] held that “Judicial power of the Federation 72121(1) there shall be two High Courts 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 at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak 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 such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. (1A) The court referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court. 2B[17] From the above provision, it is clear that the civil court shall have no jurisdiction on any matter falling within the jurisdiction of the Shariah Court. The next question is, what then are the matters that fall within the jurisdiction of the Shariah Court? This is to be found in the provision of art 74 of the Federal Constitution.” 107. Further in that case, their lordships consisting of Arifin Zakaria Chief Justice, Zulkefli CJ (Malaya), Abdull Hamid Embong, Suriyadi And Hasan Lah FCJJ adds on at para 19: [19] The ambit of the jurisdiction of the Shariah Court was considered at length in the case of Soon Singh a/1 Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489; [1999] 2 CLI 5, where Mohd Dzaiddin FCJ, in delivering the judgment of this court stated: It cannot be disputed that the Syariah court derives its jurisdiction under a State law enacted pursuant to art 74(2) of the Constitution following para 1, State List o the Ninth Schedule of the Constitution and in the case of the Federal Territories by virtue of item 6(e) Federal 74List. Thus, on a matter relating to conversion to Islam, all State Enactments and the Act expressly vest the Syariah Court jurisdiction to deal with the matter. See, for example, ss 139, 140, 141 of the Kedah Enactment; Part IX (ss 85-95) of the Administration of Islamic Law (Federal Territories) Act 1993; and Part VIII (ss 77-89) the Penang Administration of Muslim Law Enactment 1993. The sections referred to deal with capacity, requirements of a valid conversion, registration, certificate of conversion and recognition of a convert as a Muslim. It is interesting to note that s 87 of the Federal Territories Act provides that from the moment of his conversion, a convert becomes subject to the same duties and obligation as any other Muslim.” 108. In Abdul Kahar bin Ahmad v Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617 [Tab 14, Volume 4 ABOA], their lordships Abdul Hamid Mohamad, Chief Justice (as he then was), Zaki Azmi PCA and Zulkefli Makinuddin FCJ made a remark on the matter pertaining to the jurisdiction of the Syariah Court. It was held that [10] Actually, that is not the case here, nor what was prayed for in the notice of motion. The motion clearly 5prays for an order that the issue whether the impugned provisions are consistent with precepts of Islam as provided by Paragraph 1, State List, Ninth Schedule of the Federal Constitution must be decided by the Syariah High Court as provided by art 121(1A) of the Federal Constitution. That clearly is asking for the interpretation of the provision of the Constitution. Nowhere in the Constitution says _ that interpretation of the Constitution, Federal or State is a matter within the jurisdiction of the Syariah Court to do. The jurisdiction of Syariah Courts are confined to the limited matters enumerated in the State List and enacted by the respective state enactments. What happens in an administration of estate cases is different. There, while letters of administration is a matter within the jurisdiction of the ‘civil court’, the Constitution also provides that that Islamic law relating to succession, testate and intestate...’ is a matter within the jurisdiction of the State Legislature to make law to grant jurisdiction to the Syariah Court. That is followed by specific provisions in the relevant state enactment — see Latifah. 76109. The act that governs the criminal proceedings in the State Syariah Court is the Syariah Criminal Procedure (Negeri Sembilan) Enactment 2003 (EN. 13/2003) [Tab 15 Volume 4 ABOA]. Section 7 of the said enactment provides the criminal jurisdiction for a Syariah Court Judge which reads “7 Criminal Jurisdiction of Judge Subject to this Enactment, every Judge shall have cognizance of and power and authority to- (a) hear, try, determine and dispose of prosecutions for offences committed wholly or in part within the local jurisdiction of such Judge and cognizable by such Judge; (b) inquire into complaints of offences and summon and examine witnesses touching such offences and summon and apprehend and issue warrants for the apprehension of criminals and offenders and deal with them according to law; (c) issue warrants to search or to cause to be searched places wherein any articles or things with which or in 7respect of which any offence has been committed are alleged to be kept or concealed; (d) require persons to furnish security for their good behavior according to law; and (e) do all other matters and things which a Judge is empowered to do by any written law.” 110. The Jurisdiction of the State Syariah Subordinate Court is provided under the Administration of the Religion of Islam Negeri Sembilan) Enactment 2003 (EN. 10/2003) whereby Section 62 [Tab 16, Volume 4 ABOA] of the said Enactment provides that: “62 Jurisdiction of Syariah Subordinate Court (1) A Syariah Subordinate Court shall have jurisdiction throughout the State of Negeri Sembilan and shall be presided over by a Judge of the Syariah Subordinate Court. (2) The Syariah Subordinate Court shall- (a) in_its criminal jurisdiction, try any offence committed by a Muslim under the Islamic Family 78Law (Negeri Sembilan) Enactment 2003 or any other written law which prescribes offences against the recepts of the religion of Islam for of which jurisdiction is conferred by any written law which the maximum punishment provided by such Enactment or other written law does not exceed three thousand ringgit or imprisonment for a term of two years or both, and may impose any punishment provided for such offences; and (b) in its civil jurisdiction, hear and determine all such actions and proceedings as a Syariah High Court is authorized to hear and determine, if the amount or value of the subject-matter in dispute does not exceed one hundred thousand ringgit or is not capable of estimation in terms of monies (not including claims of | hadhanah or __harta sepencarian). (3) The Yang di-Pertuan Besar may from time to time by order published in the Gazette extend the civil jurisdiction of the Syariah Subordinate Courts.” 111. The procedure in trials for the State Syariah Court is clearly outlined in the Svyariah Criminal Procedure (Negeri 79Sembilan) Enactment 2003 (EN. 13/2003). Section 96 of the said Enactment provides [Tab 17, Volume 4 ABOA]: “96 Procedure in trials The following procedure shall be observed by Judges in trials: (a) when the accused appears or is brought before the Court, a charge containing the particulars of the offence of which he is accused shall be framed, read and explained to him, and he shall be asked whether he is guilty of the offence charged or claims to be tried; (b) if the accused pleads guilty to a charge, whether as originally framed or as amended, the plea shall be recorded and he may be convicted thereon: Provided that before a plea of guilty is recorded, the Court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit, without qualification, the offence alleged against him; 80(c) if the accused refuses to plead or does not plead or claims trial, the Court shall proceed _to hear the complainant, if any, and to take all such evidence as may be produced in support of the prosecution; (d) when the Court thinks it necessary it shall obtain from the complainant or otherwise the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before itself such of them as it thinks necessary; (e) the accused or his Peguam Syarie shall be allowed to cross-examine all the witnesses for the prosecution through the Judge; (f) if, upon taking all the evidence referred to in paragraphs (c), (d), and (e), the Court finds that no case against the accused has been made out which if unrebutted would warrant his conviction, the Court shall record an order of acquittal; (g) nothing in paragraph (f) shall be deemed to prevent the Court from discharging the accused at any previous 81stage of the case if for reasons to be recorded by the Court it considers the charge to be groundless; (h) if, when such evidence has been taken, the Court is of the opinion that there are grounds for presuming that the accused has committed the offence charged or some other offence which such Court is competent to try and which in its opinion it ought to try, it shall consider the charge recorded against the accused and decide whether it is sufficient and, if necessary, shall amend the charge; (i) the charge if amended shall be read to the accused as amended and he shall be again asked whether he is guilty or has any defence to make; Ui) if the accused does not plead guilty to the charge as amended or if no amendment is made the accused shall then be called upon to enter upon his defence and to produce his evidence, and shall at any time while he is making his defence be allowed to recall and cross- examine any witness through the Judge; (k) if the accused puts in any written statement, the Court shall file it with the record; 82() if the accused applies to the Court to issue a summons for compelling the attendance of any witness, whether he has or has not been previously examined in the case, for the purpose of examination or cross- examination or the production of any document or other thing, the Court shall issue a summons unless it considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice; and such ground shall be recorded by it in writing; (m) if the Court- (i) finds the accused not guilty, the Court shall record an order of acquittal; (ii) finds the accused guilty or if a plea of guilty has been recorded and accepted, the Court shall pass sentence according to the law; and (n) when the proceedings have been instituted upon the complaint of some person upon oath under section 74 and upon any day fixed for the hearing of the case the complainant is absent, the Court may, in its discretion, 83notwithstanding anything contained in this section, discharge the accused.” 112. Further, any decision made by the State Syariah Subordinate Court is appealable to the Syariah High Court and ultimately, the Syariah Court of Appeal. An application for a reference to the Syariah Court of Appeal can also be made for the determination of any question of law of public interest if one arises in the course of the process. Section 171 of the Syariah Criminal Procedure (Negeri Sembilan) Enactment 2003 (EN. 13/2003) [Tab 18 Volume 4 ABOA] reads: “171 References to Syariah Appeal Court on appeal from a Syariah Subordinate Court (1) When an appeal from a decision of a Syariah Subordinate Court in a criminal matter has been determined by the Syariah High Court, the Syariah Appeal Court may, on the application of any party, grant leave for the determination by itself of any question of law of public interest which has arisen in the course of the appeal and the determination of which by the Syariah High Court has affected the event of the appeal. 84(2) An application for leave under this section shall be made within one month or such longer time as the Syariah Appeal Court may permit of the determination of the appeal to which it relates; and in the case of an application by the Chief Syarie Prosecutor, shall be made by or with the consent in writing of that officer only. (3) When leave has been granted by the Syariah Appeal Court under this section, the Syariah High Court may make such orders as it may see fit for the arrest, custody or release on bail of any party to the appeal and the Registrar of the Syariah High Court shall forward the record of the proceedings in the Syariah High Court to the Chief Registrar of the Syariah Appeal Court who shall thereupon appoint and notify the parties to the appeal the time and place for the hearing of the matter. (4) When leave has been granted by the Syariah Appeal Court, it shall hear and determine the question allowed to be referred for its determination and make such orders as the 85113. 114. 115. Syariah High Court might have made as it may consider just for the disposal of the appeal.” We humbly submit that based on the cited authorities, in order for an application for Judicial Review to be entertained, the Applicant must first exhaust all specific reliefs available before resorting to file an application for Judicial Review. With the greatest of respect, that is not the case here. The Respondents filed the application for Judicial Review even before their matter being heard in the State Syariah Court to exhaust all the specific reliefs in relation to the alleged offence against them under Section 66 of the Syariah Criminal _Enactment___(Negeri__Sembilan) 1992. The Respondents ought to avail themselves of the specific remedies and procedures in the State Syariah Court instead of resorting to Judicial Review. Should the respondents exhaust their case before the Syariah court instead of filing for a Judicial Review, the Syariah Courts would have addressed the matter and an appropriate remedy under the Syariah law may be applied such as the specific defences provided by the Syariah Criminal Enactment 1992 (section 11-unsoundness of 86mind). Any investigation and/or prosecution under Section 66 will result in the Syariah court determining the subject matter which is now before this court. This clearly shows how the application made by the Respondents is premature and thus has the effect of taking this honourable court, the Court of Appeal and the High Court on an extended forensic journey. THE CONSTITUTIONAL CHALLENGE TO THE VALIDITY OF SECTION 66 OF THE SYARIAH CRIMINAL ENACTMENT 1992 NEGERI SEMBILAN| F. Ground 6 - Memorandum of Appeal 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. Secondly, even if Section 66 is interpreted without falling back to Section 4 (2) Interpretation Act 1948, it is clear that Section 66 falls within the exception under Article 8 (5) (a) of Federal Constitution. 87116.We humbly contend that 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 117. Article 8 of the Federal Constitution [Tab 1, Volume 5 ABOA] provides inter alia as follow: “(1) All persons are equal before the law and entitled (2) to the equal protection of the law. 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.” 118. It is also our humble submission that the Learned Judges of the Court of Appeal had clearly erred in law by opining that Section 66 is inconsistent with Article 8(2) of Federal Constitution as it applies only to the male gender. This view is certainly erroneous especially when it fails to take 88119. 120 into account Section 4 of the Interpretation Act 1948 [Tab 2, Volume 5 ABOAJthat widens the scope of words and expressions relating to the male gender in a statute to also include the female gender as well. Section 4 of the n 66 Interpretation Act 1948 is indeed applicable to Sec as Section 2(2) of Syariah Criminal (Negeri Sembilan) Enactment 1992 relies on the Interpretation Act of 1948 to define the etymology of phrases and words therein which are not covered under the said Enactment Furthermore, we humbly contend that even if section 66 is discriminatory on the ground of gender inequality, it clearly falls within the exception under Article 8 (5) (a) of Federal Constitution which provides as follow: *(5) This Article does not invalidate or prohibit— (a) any provision regulating personal law; ‘The expression ‘personal law’ has been provided in the Item 1, List II] of the Ninth Schedule of the Federal Constitution [Tab 3, Volume 5 ABOA] which provides as follow: “List II—State List 1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamie law and 89ersonal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by ersons 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; the control of propagating doctrines and beliefs among persons professing the 90121. 122 religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.” As ‘personal law’ is provided under the Item 1, List II of the Ninth Schedule of the Federal Constitution, the State Legislative Assembly would have the power to enact laws on that subject matter as provided by Article 74 (2) of the Federal Constitution [Tab 4, Volume 5 ABOA]: “(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule or the Concurrent List.” The learned judges of the Court of Appeal, in ruling that section 66 is not personal law, failed to take into account Article 74 (4) of the Federal Constitution which provides as follow: “(4) 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 a1generality of the former shall not be taken to be limited by the latter.” 123. As such, ‘Islamic law and personal and family law of persons professing the religion of Islam’ as provided by the Second List of the Ninth Schedule is a general expression of the matters which the State Legislative Assembly has powers to make law on. 124. The expression ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion’ under which section 66 was enacted refers to a specific expression. Therefore, in interpreting ‘personal law’, one cannot limit its interpretation to ‘merely the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, _legitimacy, guardianship, gifts, partitions and non-charitable trusts’ as decided by the Court of Appeal. 125. Furthermore, the Court of Appeal had clearly erred in law and failed to consider that the use of semi-colon between sentences in the Item 1, List II of the Ninth Schedule of the Federal Constitution does not segregate the scope of Islamic Law and Personal law (which is the main area of the 92paragraph) to encompass the specific subject of: “the creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion”. The status of punctuation mark of semi- colon was clarified in Thornton-Legislative Drafting 1970, where the following was said “The most important thing to remember about the semi- colon is that it is the mark of co-ordination. Its function to show a relationship between elements of a sentence, usually clauses, which a complete break into a separate sentence would tend to obscure. In legislation the semi-colon is useful for 2 principal tasks: rdinate within a section or sub-section 2 (a) To co independent clauses having a relationship close enough to render it desirable that the clauses be joined in one sentence yet remote enough to mark the co-ordination by a semi-colon rather than by means of a conjunction with or without a common. (b) To co-ordinate a series of paragraphs or sub- paragraphs.” 93126. 127 (See: Public Prosecutor v Velory Libong [2005] 4 CLJ 797 [Tab 5, Volume 5 ABOA]) Hence the words “Islamic Law and Personal and Family Law” forms the genus that defines the entire paragraph of Item _1, List II of the Ninth Schedule of the Federal Constitution consonant with the principle of ejusdem generis (sce Tenaga Nasional Bhd v Ong See Teong & Anor [2010] 2 MLJ 155 (FC), at page 177 [Tab 6, Volume 5 _ABOA)). Furthermore the use of the word “ineluding” on the 4t line of Item 1, List II of the Ninth Schedule of the Federal Constitution denotes the intention of the drafters of our constitution to specify each distinctive subject such as marital relations, management of Islamic trust and etc. to be under the main scope of Islamic Law and Personal Law Thus the use of a semi-colon was not to isolate each subject from the main genus of Item 1, but merely to categorise each subject as its own entity as part of the scope or tenets under the main umbrella of Islamic Law and Personal Law, as did by His Lordship Zaki Tun Azmi PCA (as he then was) in the Federal Court case of Sulaiman Takrib v Kerajaan Negeri Terengganu [2009] 2 CLJ 54 94[Tab _7, Volume 5 ABOA], where Learned President of the Court of Appeal at page 86, paragraph 104 had this to say: “again, the relevant paragraph of the Second List in the Ninth Schedule is para 1 relating to Islamic law and ersonal_and family law of persons professing the religion of Islam. In particular, the meaning of the word ‘precepts’ from the text quoted earlier ie, '... creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion except in regard to matters included in the Federal List 128. This position is a akin to an earlier stand taken by the Federal Court in the case of Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101 [Tab 8, Volume 5 ABOAI, where at page 110 paragraph 14: “[14] Let me begin from the beginning. By the time Malaya, then, obtained her independence in 1957, the ‘civil court' (as the term has become to be commonly used now) had established itself as ‘the court' in the country. Hence, the Federal Constitution, in the Chapter on the Judiciary talks about the ‘civil courts’. However, the Constitution recognized the necessity to 95establish __syariah courts as State courts with jurisdiction over Muslims only in, substantially, personal law matters. Thus, in the Ninth Schedule, List II_(State List) a provision is made, inter alia, for the creation of syariah courts. 129. In Fathul Bari bin Mat Jahya & Anor v Majlis Agama Islam Negeri Sembilan & Ors [2012] 4 MLJ [Tab 9 Volume 5 ABOAI, the petitioners contend that s 53(1) of the Syariah Criminal Enactment (Negeri Sembilan) 1992 is invalid on the ground that it breaches Article 74(2) and Item 1, State List, Ninth Schedule of the Federal Constitution wherein the State Legislature is conferred with the power to make laws only with respect to the ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion’. Their lordships Arifin Zakaria Chief Justice, Zulkefli CJ (Malaya), Abdull Hamid Embong, Suriyadi and Hasan Lah FCJJ held as follows:- [11] The critical issue in this petition turns on the question of whether the requirement of a tauliah for the teaching of the religion of Islam falls within the precepts of Islam, without which, any person who teaches Islam is committing an offence against the precepts of Islam. The petitioners submit it is not. 96[12] Before we delve into that issue, it is necessary for us to firstly consider what is meant by the term ‘precepts’. The word ‘precepts’ is not defined in the Federal Constitution. It came for consideration of this court in Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan Malaysia, intervener) and other applications [2009] 6 MLJ 354. In that case, the court was asked to consider the issue of whether the non- compliance of a fatwa issued by the Fatwa Committee is an offence against the precepts of Islam. Even though the principal issue in that case is not the same as here, the observation of the court as to what is meant by precepts” is relevant to the present case. Having considered the expert opinions tendered in that case, Abdul Hamid Mohamed CJ in delivering the judgment of the court held. There is no definition of the word ‘precepts’ in the Federal Constitution. The Malay translation of the Constitution uses the word ‘perintah'. The Istilah Undang-Undang (3rd Ed), Sweet & Maxwell Asia uses the word ‘arahan’ for ‘precepts’. The Kamus Inggeris Melayu Dewan, uses the word ‘ajaran'. According to Siri Glosari Undang-Undang of the Dewan Bahasa dan 97Pustaka ‘precepts’ means ‘perintah’, ie ‘Suruhan dan Larangan melakukan sesuatu, contohnya dalam agama.’ According to the Oxford English Dictionary the word ‘precept’ means ‘a general command or injunction; an instruction, direction or rule for action and conduct; esp an injunction as to moral conduct; a maxim. Most commonly applied to divine commands ...'. In my view, the meanings of the word ‘precept’ quoted above point to the same thing as described in greater detail in the Oxford English Dictionary. I accept them all. It can be seen that all the three expert witnesses agree that: (a) precepts of Islam cover three main domains ie creed or belief (‘agidah'), law (‘Shariah’) and ethics or moralit Cakhlal 'b) precepts of Islam are derived from the al-Quran and Sunnah. [20] Further, we are of the view that the term precepts of Islam must be accorded a wide and liberal meaning. This is in line with the authorities on the interpretation of the heads or fields of the legislation as appearing in the legislative lists of the Federal Constitution. As was observed by Gopal Sri Ram JCA (as he then was) in the 98case of Ketua Pengarah Jabatan Alam Sekitar & Anor as follows It is a well settled principle of constitutional interpretation that every entry in each Legislative List must be given its widest significance and that its scope cannot be curtailed save to the extent necessary to give effect_to other legislative entries: State of Bombay v Narottamdas Jethabhai AIR 1951 SC 69. It is also well settled that the phrase ‘with respect to’ earing in art 74(1) and (2) of the Federal Constitution the provision conferring legislative power upon the Federal and State Governments respectively — is an expression of wide import. As observed by Latham CJ inBank of New South Wales v The Commonwealth (1948) 76 CLR 1 at p 186, in relation to the identical phrase appearing in s 51 of the Australian Constitution which confers Federal legislative authority: A power to make laws ‘with respect to' a specific subject is as wide a legislative power as can be created. No form of words has been suggested which would give a wider power. The power conferred upon a Parliament by such words in an Imperial statute is plenary — as wide as that of the Imperial Parliament itself:R v Burah (1878) 3 App Cas 889; Hodge v R (1883) 9 App 99Cas 117. But the power is plenary only with respect to the specified subject. Although Latham CJ was dissenting on that occasion, we are unable to see any criticism in the majority judgments in relation to what was said in the foregoing passage. Indeed, a reading of all the judgments in that case reveals that there was no disagreement between their Honours upon the applicable interpretative principles. Where the majority parted company with the learned chief justice was only with regard to the consequence that resulted on an application of those principles to the particular statute that was the subject of challenge. [24] Section 53 of the Enactment is enacted pursuant to Item _1, State List, Ninth Schedule of the Federal Constitution which confers upon the State Legislature the power to enact laws relating to the religion of Islam generally. One of the entries in Item 1 is the creation of offences by persons professing the religion of Islam against the precepts of that religion. Section 53 of the Enactment makes it an offence for an: erson to engage in the teaching of Islam to any person, other than to members of his family, without first obtaining a tauliah. 100The purpose of this provision is clear, that is to protect the integrity of the aqidah (belief), Shariah (law, and akhlak (morality) which constitutes the precepts 0, Islam. The requirement is necessary to ensure that only a person who is qualified to teach the religion is allowed to do so. This is a measure to stop the spread of deviant teachings among Muslims which is an offence under s 52 of the Enactment. It is commonly accepted that deviant teachings is an offence against the precepts of Islam. Therefore, the respondents contend that, by necessary implication, the teaching of Islam without a tauliah could similarly be construed as an offence against the precepts of Islam. In our judgment, there is merit in the respondents’ contention. For those reasons, we hold that the State Legislative Assembly of Negeri Sembilan had acted within its legislative power in enacting s 53 of the Enactment. [28] For completeness, we wish to add that s_53(1) of the Enactment was enacted pursuant to the provision of s 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965, a federal legislation conferring criminal jurisdiction to the Shariah Courts in respect of offences against the precepts of the religion of Islam by persons professing that religion. Therefore, we hold that the 101Shariah Court of Negeri Sembilan is conferred with the necessary jurisdiction to try such an offence. 130. No doubt that in the Court of Appeal case of Majlis Agama 131 Islam dan Adat Melayu Perak Darul Ridzuan v Mohamed Suffian bin Ahmad Syazali & Anor [2014] 3 MLJ_74 [Tab 10, Volume 5 ABOA] His Lordship Mohamad Ariff Yusof JCA held that the words or phrase “the Islamic law relating to” can only encompass the subject of ‘succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trust.’ We have no qualm with the said dictum, in fact we dare say His Lordship JCA was right, as the said words are not part of the main genus of Item 1, List II of the Ninth Schedule of the Federal Constitution, namely “Islamic Law and Personal Law” but instead is a specific part of the subject of succession, marriage, divorce and etc, thus in view of the use of semi-colon at end of the said subject, the words “the Islamic law relating to” cannot be imported to be used for another subject in Item 1, namely “mosque and place of worship”. Hence we humbly submit that this particular case certainly does not support the proposition of the Respondents, as 102132. 133. nowhere in the said judgment did His Lordship Mohamad Ariff Yusof JCA hold that Islamic Law and Personal Law must only relate to the subject of succession, marriage, divorce and etc. Furthermore the article by Professor Dr. Shad Saleem Faruqi titled, Jurisdiction of State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective (2005) XXXIV INSAF is no longer a leading opinion on the interpretation and construction of Item 1. List I] of the Ninth Schedule of the Federal Constitution, as the decision of the Federal Court in the case of Sulaiman Takrib v Kerajaan Negeri Terengganu [2009] 2 CLJ 54 [Tab 7, Volume 5 ABOAJ, (that we have cited above) had considered the subject of “creation and punishment of offences” as one of the categories of subjects under the scope of Islamic and Personal Law. The basic definition of “Personal Law” under Black’s Law Dictionary 7th Edition to limit it’s etymology within the rubrics of a person’s family matters certainly cannot apply within the context of Malaysia’s complex religious and socio-demographic. This definition advanced by the Respondent is also in contrast with the definition of personal law that Professor Jeffrey A. Redding of Yale 103Law School, provided in his article titled Slicing the American Pie: Federalism and Personal Law (2007) Faculty Scholarship Series. Paper 10 [Tab 11, Volume 5 ABOA] namely the following: “Personal law system” is a legal system in which laws or legal norms bind “different” people different: sorting people into various legal regimes depending on what “tupe of person” the person is. 134. It was also the following opinion of the learned Professor, that the scope of Personal Law is never the same with each society, and may defer accordingly: “The factors that are important to personhood and sorting it,may differ from society to society and, thus. from personal law system to personal law system, but all_personal law systems allocate legal rights and responsibilities differently to their different “types” o citizens.” 135. Thus considering the above, in the Malaysian context “Personal Law” must not be interpreted to only cover a person’s family matters but rather it must be interpreted within the specific milieu of Islamic law governing those 104136. 137 who professes the religion of Islam in Malaysia, i.e. a specific type of Malaysian Citizen. Having submitted the above, it is clear the Learned Judges of the Court of Appeal had erred in law by holding Secti 66 to be unconstitutional on the impression that it does not fall within the scope of “personal law” under Item 1, List Il of the Ninth Schedule of the Federal Constitution. Ground 7 - Memorandum of Appeal 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. Article 9: Section 66 is Not Inconsistent With Article 9(2) Of The Federal Constitution and the Freedom of Movement Enshrined Under Article 9(1) is Not Absolute We respectfully submit that the Learned Judges of the Court of Appeal erred in holding that Section 66 is unconstitutional on the reason of it being inconsistent with Article 9(2) and Article 10(1)(a) of the Federal Constitution This can be gleaned from the Grounds of Judgment of the 105Court of Appeal, ranging from page 56 to 68 of the Records of Appeal (Volume 1). 138. It is our humble submission that Section 66 is constitutional and not inconsistent with the said Articles as Section 66 does not in any way deprive the Respondents of the protection provided for under Article 9(2) and Article 10(1)(a) of the Federal Constitution. 139. Further and/or in the alternative, the freedom of movement embodied under Article 9(2) of the Federal Constitution is not absolute as it is still subject to certain constitutional limitations provided under the Constitution inter alia, laws governing “Public Order or Public Health” as envisaged in the said Article of the Federal Constitution. 140. Article 9(2) of the Federal Constitution [Tab 12, Volume 5 ABOA] is reproduced herein below for ease of reference: 9. Prohibition of banishment and freedom of movement (1) No citizen shall be banished or excluded from the Federation. 106