Lapuran keputusan Mahkamah Tinggi
Malaya (Sivil) dalam kes Victoria Jayaseele Martin v Majlis Agama Islam Wilayah
Persekutuan & Anor [2011] 9 MLJ 194.
^^^^^^^^^^^^^^^^^^^^^
Sebagaimana yang
di nyatakan di dalam siri yang terdahulu saya bentangkan di sini lapuran
keputusan semakan kehakiman oleh Mahkamah Tinggi Malaya dalam kes Victoria Jayaseele Martin v Majlis
Agama Islam Wilayah Persekutuan & Anor [2011] 9
MLJ 194 mengenai isu samada orang bukan
Islam boleh di lantik sebagai Peguam Syari’e untuk mewakili pihak-pihak yang bertikai di Mahkamah Syariah.
|
Victoria Jayaseele Martin v Majlis Agama
Islam Wilayah Persekutuan & Anor [2011] 9 MLJ 194 HIGH COURT (KUALA LUMPUR)
APPLICATION FOR JUDICIAL REVIEW NO R2
(R4)-25-319 OF 2009
17 March 2011
Administrative Law -- Judicial review --
Application for -- Review of decision of first respondent – First respondent
denied non-Muslim applicant's admission as peguam syarie -- Whether first
respondent was empowered to regulate qualification of peguam syarie --
Whether word 'qualification' in legislation wide enough to permit first
respondent to impose condition that peguam syarie must be Muslim -- Whether r
10 unconstitutional and in contravention of art 8 of the Federal Constitution
-- Administration of Islamic Law (Federal Territories) Act 1993 s 59(1) &
(2) -- Peguam Syarie Rules 1993 r 10 Words and Phrases -- Qualification --
Definition of -- Whether plain and ordinary meaning of word enough to allow
first respondent to impose condition in r 10 -- Administration of Islamic Law
(Federal Territories) Act 1993 s 59(1) & (2) -- Peguam Syarie Rules 1993
r 10
Victoria Jayaseele Martin ('the
applicant'), an advocate and solicitor of the High Court of Malaya, applied
to be admitted as a Syarie lawyer in Wilayah Persekutuan, Kuala Lumpur. Her
application was denied on the grounds that she was not a Muslim. This was the
applicant's application for judicial review of the decision by the Majlis
Agama Islam Wilayah Persekutuan ('the first respondent'), on the grounds that
the first respondent had acted with illegality, irrationality,
unreasonableness and in excess of jurisdiction when it denied her admission
as a Syarie lawyer in Wilayah Persekutuan because she was not a Muslim. By
way of this application the applicant sought, inter alia, a declaration that
r 10 of the Peguam Syarie Rules 1993 ('r 10') mandating that only Muslims may
be admitted as syarie lawyer was ultra vires the Administration of Islamic Law
(Federal Territories) Act 1993 ('the Act') and also void for contravening
arts 8, 5 and/or 10 of the Federal Constitution ('Constitution'); and an
order of certiorari to quash the first respondent's decision. Meanwhile, the
first respondent applied to strike out the application for judicial review as
an abuse of process, frivolous and vexatious. The first respondent submitted
that the civil court had no jurisdiction to hear this matter since it
involved matters within the Shariah and that r 10 was valid and passed in
accordance with the Act. Both the applicant's application for judicial review
and the first respondent's striking out application were heard together.
The applicant submitted that under s
59(1) of the Act the first respondent must admit any person having sufficient
knowledge of Islamic law as a syarie lawyer and that a person need not be a
Muslim to have sufficient knowledge of Islamic Law. The applicant further
argued that the first respondent's requirement that the person seeking
appointment as a syarie lawyer must be a Muslim was an additional requirement
that the Legislature did not intend. As such it was the applicant's argument
that the first respondent had exceeded its legislative power when it enacted
r 10, which mandated that only Muslims may be admitted as a syarie lawyer.
The first respondent submitted that it was empowered under s 59(2) of the Act
to legislate on the qualification of a Syarie lawyer and that r 10, which
required the person seeking appointment as a syarie lawyer to be a Muslim,
was made under s 59(2) of the Act.
Held, dismissing the applicant's application and the
first respondent's application:
(1) Since s 59(1) of the Act begins with
the opening words 'subject to subsection (2)' it must be read subject to
sub-s (2). In clear plain language it means that the discretion of the first respondent
to admit any person with sufficient knowledge of Islamic law to be a Syarie
lawyer is subject to sub-s (2) and that s 59(1) did not stand alone without
condition. Further the words 'may admit' in s 59(1) of the Act denote that it
is not mandatory for the first respondent to admit a person solely on the
basis of having sufficient knowledge of Islamic Law. It was the intent of the
Legislature to delegate to the first respondent the power to determine the
necessary qualification at its discretion. Hence the first respondent was
empowered to add, vary or to limit the said qualification. As such, the first
respondent was empowered, by virtue of s 59(2) of the Act, to regulate the
qualification of a Syarie lawyer (see paras 15-17).
(2) In the absence of the definition of
'qualification' in the Act or in the Interpretation Act, the plain and
ordinary meaning of the word had to be adopted. It was found that the plain
and ordinary meaning of the word 'qualification' was wide enough to allow the
first respondent to impose the condition appearing in r 10. The first
respondent had in its wisdom, based on its interpretation of the Shariah,
seen it fit to require such qualification and as such, it was neither proper
for this court to doubt nor question the wisdom of the first respondent in
imposing such a condition.
The decision of the first respondent is based on its
interpretation of the Islamic jurisprudence. Unless a challenge is made on
the correctness of the first respondent's interpretation, its decision
remains (see paras 18-22, 27 & 28).
(3) It was found that if the legislature
deemed it necessary that for the purpose of achieving the object of the Act,
it required a rule that only a Muslim may be admitted as a syarie lawyer and that
rule was made directed to the problem, manifest by experience and that it
discriminated on adequate grounds, then the law did not violate art 8 of the
Constitution and it was good law. Further having a syarie lawyer who
professes the religion of Islam will achieve the object of the Act; faith
being a dimension necessary in its approach. In such a case there was nexus
between the impugned rule and the object of the Act. Therefore the impugned r
10 did not contravene art 8 of the Constitution and was not unconstitutional
(see paras 37-41).
(4) As this matter involved an issue of
public interest, each party was to bear its own costs (see para 44).
Victoria Jayaseele Martin ('pemohon'),
seorang peguamcara dan peguambela Mahkamah Tinggi Malaya, telah memohon untuk
diterima masuk sebagai peguam syarie di Wilayah Persekutuan, Kuala Lumpur. Permohonan
kemasukannya telah dinafikan atas alasan bahawa dia bukan beragama Islam. Ini
merupakan permohonan pemohon untuk semakan kehakiman keputusan oleh Majlis
Agama Islam Wilayah Persekutuan (responden pertama), atas alasan bahawa
responden pertama telah bertindak dengan kepenyalahan undang-undang, tidak
rasional, tidak berpatutan dan dengan bidang kuasa yang berlebihan apabila ia
menafikan kemasukannya sebagai peguam syarie di Wilayah Persekutuan
disebabkan dia bukan beragama Islam. Melalui permohonan ini pemohon memohon,
antara lain, deklarasi bahawa k 10 Kaedah-Kaedah Peguam Syarie 1993 ('k 10')
yang mana memberikan mandat bahawa hanya orang yang beragama Islam boleh
diterima masuk sebagai peguam syarie adalah ultra vires Akta Pentadbiran
Undang-Undang Islam (Wilayah-Wilayah Persekutuan) 1993 ('Akta') dan juga
tidak sah kerana bercanggah dengan perkara 8, 5 dan/atau 10 Perlembagaan Persekutuan
('Perlembagaan'); dan perintah certiotari untuk membatalkan keputusan
responden pertama. Sementara itu, responden pertama telah memohon untuk
membatalkan permohonan untuk semakan kehakiman sebagai penyalahgunaan proses,
remeh dan menyusahkan.
Responden pertama berhujah bahawa
mahkamah sivil tidak mempunyai bidang kuasa untuk mendengar perkara ini
memandangkan ia berkenaan dengan perkara-perkara dalam lingkungan Syariah dan
bahawa k 10 adalah sah dan diluluskan mengikut Akta tersebut. Kedua-dua
permohonan pemohon untuk semakan kehakiman dan pembatalan permohonan
responden pertama didengar bersama. Pemohon berhujah bahawa di bawah s 59(1)
Akta, responden pertama harus menerima masuk sesiapa yang mempunyai pengetahuan
yang mencukupi tentang undang-undang Islam sebagai peguam syarie dan bahawa seseorang
tidak mestinya beragama Islam untuk mempunyai pengetahuan yang mencukupi
tentang undang-undang Islam. Pemohon selanjutnya menghujahkan bahawa
keperluan responden pertama bagi seorang yang memohon pelantikan sebagai
peguam syarie hendaklah beragama Islam adalah keperluan tambahan yang mana
tidak dimaksudkan oleh Perundangan. Oleh itu, adalah menjadi hujahan pemohon
bahawa responden pertama telah melepasi kuasa perundangannya apabila ia
menggubal k 10, yang mana memberi mandat bahawa hanya seorang Islam boleh
diterima masuk sebagai peguam syarie. Responden pertama berhujah bahawa ia
diberi kuasa di bawah s 59(2) Akta untuk menggubal kelayakan seorang peguam
syarie dan bahawa k 10, yang mana menghendaki seorang yang memohon pelantikan
sebagai peguam Syarie beragama Islam, adalah dibuat di bawah s 59(2) Akta.
Diputuskan, menolak permohonan pemohon dan
permohonan responden pertama:
(1) Memandangkan s 59(1) Akta bermula
dengan kata-kata pembuka 'subject to subsection (2)' ia hendaklah dibaca
tertakluk kepada sub-s (2). Dengan bahasa yang jelas dan ringkas, ia bermaksud
bahawa budi bicara responden pertama untuk menerima masuk sesiapa dengan pengetahuan
undang-undang Islam yang mencukupi sebagai peguam Syarie adalah tertakluk kepada
sub-s (2) dan bahawa s 59(1) adalah bukan tanpa syarat. Selanjutnya perkataan
'may admit' di dalam s 59(1) Akta menandakan bahawa adalah tidak mandatori
untuk responden pertama menerima masuk seseorang semata-mata atas dasar
mempunyai pengetahuan undang-undang Islam yang mencukupi. Adalah menjadi niat
badan perundangan untuk memberi responden pertama kuasa untuk menentukan
kelayakan yang berpatutan atas budi bicaranya. Justeru responden pertama
adalah diberikan kuasa untuk menambah, mengubah atau menghadkan kelayakan
tersebut. Oleh itu, responden pertama telah diberikan kuasa, menurut s 59(2)
Akta, untuk mengawal selia kelayakan seorang peguam syarie (lihat perenggan
15-17).
(2) Dalam ketiadaan definisi
'qualification' di dalam Akta tersebut atau di dalam Akta Tafsiran, maksud
jelas dan biasa perkataan hendaklah digunakan. Adalah didapati bahawa maksud jelas
dan biasa perkataan 'qualification' adalah cukup luas untuk membenarkan
responden pertama untuk mengenakan syarat yang terdapat di dalam k 10. Responden
pertama dalam kewajarannya, berdasarkan tafsiran Syariah, menganggap adalah
bersesuaian untuk memerlukan kelayakan tersebut dan oleh itu, adalah tidak
wajar bagi mahkamah ini untuk meragui atau menyoal kewajaran responden
pertama dalam mengenakan syarat sedemikian.
Keputusan responden pertama adalah berdasarkan
tafsirannya sendiri tentang jurisprudens Islam. Melainkan bantahan telah
dibuat terhadap ketepatan tafsiran responden pertama, keputusannya dikekalkan
(lihat perenggan 18-22, 27 & 28).
(3) Adalah didapati bahawa sekiranya
badan perundangan merasakan patut bahawa bagi tujuan mencapai objektif Akta,
ia memerlukan peraturan di mana hanya seorang Islam boleh diterima masuk
sebagai peguam syarie dan bahawa peraturan tersebut telah dibuat untuk menangani
masalah tersebut, dikukuhkan dengan pengalamanan dan bahawa ia
mendiskriminasi atas alasan yang secukupnya, oleh itu undang-undang tersebut
tidak bercanggah dengan perkara 8 Perlembagaan dan merupakan undang-undang
yang baik. Tambahan, dengan mempunyai peguam syarie yang menganut agama
Islam, ia dapat mencapai objektif Akta; kepercayaan menjadi ukuran yang
diperlukan dalam pendekatannya. Dalam kes sedemikian terdapat kaitan di
antara peraturan yang dipersoalkan dengan objektif Akta. Lanjutan itu k 10
yang dipersoalkan tidak bercanggah dengan perkara 8 Perlembagaan dan adalah
berperlembagaan (lihat perenggan 37-41).
(4) Melihatkan bahawa perkara ini
melibatkan isu kepentingan awam, setiap pihak hendaklah menanggung kos
masing-masing (lihat perenggan 44).
Notes
For cases an application for judicial
review, see 1(1) Mallal's Digest (4th Ed, 2010 Reissue) paras 254-279.
Cases referred to
Abdul Aziz bin Mohd Alias v Timbalan
Ketua Polis Negara [2010] 4 MLJ
1; [2010] 3 CLJ 643, FC (refd)
Abdul Ghani bin Ali @ Ahmad & Ors v
PP [2010] 3 MLJ
561; [2001] 3 CLJ 769, FC (refd)
Chin Choy & Ors v Collector of Stamp
Duties [1979] 1 MLJ
69, FC (refd)
Danaharta Urus Sdn Bhd v Kekatong Sdn
Bhd (Bar Council) Malaysia, intervener) [2004] 2 MLJ 257, FC (refd)
Datuk Hj Harun Idris v Pp [1977] 2 MLJ 155, FC (refd)
Malaysian Bar v Government of Malaysia
& Anor [1987] 2 MLJ
165, SC (refd)
Pihak Berkuasa Negeri Sabah v Sugumar
Balakrishnan [2002] 3 MLJ
72; [2002] 4 CLJ 105, FC (refd)
Sivarasa Rasiah v Badan Peguam Malaysia
& Anor [2010] 2 MLJ
333; [2010] 3 CLJ 507, FC (refd)
Tan Sri Abdul Khalid bin Ibrahim v Bank
Islam Malaysia Bhd and another suit [2009] 6 MLJ
416; [2010] 4 CLJ 388, HC (refd)
Legislation referred to
Administration of Islamic Law (Federal
Territories) Act 1993 ss 10, 34, 34(4), 59(1), (2)
Federal Constitution arts 5, 5(1), 8,
8(1), (2), (5), (5)(b), 10, 10(1)(c)
Interpretation Acts 1948 and 1967
Legal Profession Act 1976
Peguam Syarie Rules 1993 r 10
Rules of the High Court 1980 O 18 r 19
Syariah Court Civil Procedure (Federal
Territories) Act 1998
Ranjit Singh (Jamie Wong with
him)(Ranjit Singh & Yeoh) for the applicant.
Sulaiman Abdullah (Abdul Rahim Sinwan
and Zulkifli Che Yong with him) (Zulkifli Yong Azmi & Co) for the first
respondent.
Noorhisham Ismail (Arik Sanusi bin Yeop
Johar, Senior Federal Counsel and Haryati Ahmad, Federal Counsel with him)
(Senior Federal Counsel, Attorney General's Chambers) for the second
respondent.
Rohana Yusuf J:
[1] The applicant, Victoria Jayaseele Martin, is an
advocate and solicitor of the High Court of Malaya. She applied to be
admitted as peguam syarie in Wilayah Persekutuan, Kuala Lumpur. Her
application was denied by Jawatankuasa Peguam Syarie vide a letter
dated 9 September 2009 shown in exh 'VM13' on the ground that she did not
meet the qualification provided under Peguam Syarie Rules 1993 (PU(A)
408/1993), that is, she was not a person who professed the religion of Islam.
In other words, she was not a Muslim.
[2] She now applies to this court for judicial review of
that decision and prays for the following:
(a) a declaration that, that part of r
10 of the Peguam Syarie Rules 1993 (r 10) mandating that only Muslims may be
admitted as peguam syarie is ultra vires the Administration of Islamic
Law (Federal Territories) Act 1993 (Act 505);
(b) a declaration that, that part of r
10 mandating that only Muslims may be admitted as peguam syarie is in
contravention of arts 8(1) and or 8(2) and or art 5 and or art 10(1)(c) of
the Federal Constitution and as a consequence, is void;
(c) an order of certiorari to quash the
decision of the respondent which refused to process the applicant's
application to be admitted as peguam syarie.
(d) an order of mandamus to compel the
respondent to receive and process the applicant's application to be admitted
as peguam syarie without regards to the fact that the applicant is not
a Muslim; and
(e) such further and or other
consequential reliefs or directions as this court deems fit and just to give.
[3] The grounds of the judicial review are that the
first respondent, Majlis Agama Islam Wilayah Persekutuan ('the Majlis') in
denying the applicant on the ground that she was not a Muslim, had acted with
illegality, irrationality, unreasonableness and in excess of its
jurisdiction. She also contended that the Majlis had taken into account what ought not to have been taken.
[4] Leave was granted by this court on 14 May 2010
despite resistance from the attorney general's chambers on the issue of
jurisdiction.
[5] Meanwhile, the Majlis took out an application under
O 18 r 19 of the Rules of the High Court 1980 to strike out the application
for judicial review on the grounds specified in encl 17. Essentially the
objections raised are these; that the civil court has no jurisdiction to hear
this matter since it involves matters within the Syariah, that r 10 is valid
and passed in accordance with Act 505 and that the applicant had failed to challenge the constitutionality of the
related statutes. Hence, the application for judicial review is said to be an
abuse of process, frivolous and vexatious.
ISSUES
[6] I note that the applications in encl 1 and encl 17
are premised on issues that are not too dissimilar for determination by this
court. For that reason I made an order that both the applications are to be
heard together. The issues for determination in these applications are as
follows:
(a) Whether r 10 which imposes the
requirement that an applicant must be a Muslim as a qualification for
admission as peguam syarie is ultra vires the following:
(i) Act 505;
(ii) art 8, art 5 and art10 of the Federal
Constitution;
(b) Whether the civil court has the
jurisdiction to determine this issue.
WHETHER R 10 IS ULTRA VIRES ACT 505
[7] On the first issue, learned counsel for the
applicant, Encik Ranjit Singh (Cik Jamie Wong with him), contended that r 10,
which was made under Act 505, is ultra vires s 59(1) of Act 505 itself. He
argued that r 10 was made outside the ambit and requirement of s 59(1), which
stipulates that 'the Majlis may admit any person having sufficient knowledge
of Islamic law to be peguam syarie ...'. It was further submitted that
by the wording in s 59(1) the Majlis must admit any person having sufficient
knowledge of Islamic law. There is no other condition save and except for
that. He then said that a person need not be a Muslim to have sufficient
knowledge of Islamic law. Therefore the requirement that the person must be a
Muslim, according to Encik Ranjit Singh, is an additional requirement that
the Legislature did not intend. By reason thereof, he contended that the Majlis
had exceeded the legislative power granted to it in enacting r 10 which
provides for the additional requirement, applying the purposive rule of interpretation.
On this basis he concluded that r 10 is ultra vires Act 505.
[8] For the Majlis, learned counsel Tuan Hj Sulaiman
Abdullah (Tuan Hj Zulkifli bin Che Yong with him) contended that the Majlis
is empowered under s 59(2) to legislate on the qualification of peguam
syarie as it is within its legislative power. He submitted that s 59(1)
provides only the 'necessary condition' but not 'sufficient conditions' to
qualify as peguam syarie. The determination of sufficient
qualification of peguam syarie is a matter within the Syariah that
only the Majlis is competent to determine. This power is delegated to
the Majlis by the Legislature because, in Tuan Haji Sulaiman's view,
the Legislature acknowledged that the Majlis would be in the best
position to determine this matter. Along this line, he also argued that the Legislature
may be made up of persons who are not well versed in the area or the
requirement of the Syariah with regard to this matter. For that reason the
Legislature had decided to delegate this power to the Majlis.
[9] Tuan Hj Sulaiman had also drawn the attention of
this court to the decision of learned High Court judge of Syariah which
stressed the importance of peguam syarie to be a person who professes
the religion of Islam based on findings of the Syariah, which is similar to
the position taken in the fatwa made by the Muzakarah Jawatankuasa Fatwa
Majlis Kebangsaan Bagi Hal Ehwal Ugama Islam Malaysia Ke 92 on the 16
December 2010; both of which I take judicial notice of (see exh WMS1 enclosed
40).
[10] Learned senior federal counsel Encik Arik Sanusi,
(senior federal counsel Encik Noor Hisham Ismail, and federal counsel Puan
Haryati Ahmad with him) argued that s 59(2) allows the majlis to
regulate on, amongst others, qualification of peguam syarie. It
is therefore in the wisdom of the Majlis, based on Syariah interpretation,
that one of the qualifications for admission as peguam syarie is that
the applicant must be a Muslim.
[11] Learned senior federal counsel also submitted that
the word qualification used in s 59(2) is not defined in Act 505 or
the Interpretation Acts 1948 and 1967. The word qualification therefore
should be given its plain and ordinary meaning. A few dictionary meanings of
the word qualification had been brought to the attention of this
court.
FINDINGS
[12] The Peguam Syarie Rules 1993 is a subsidiary
legislation made by the Majlis with the approval of Yang di Pertuan
Agong. Rule 10 is made under s 59(2) of Act 505. To appreciate the full
effect of these provisions, it would no doubt be useful to produce them herein as below:
59. Peguam Syarie
(1) Subject to subsection (2), the
Majlis may admit any person having sufficient knowledge of Islamic Law to be
Peguam Syarie to represent parties in any proceedings before the Syariah
Court.
(2) The Majlis may, with the approval of
the Yang di Pertuan Agong, make rules:
(a) to provide for the procedure,
qualifications and fees for the admission of Peguam Syarie; and
(b) to regulate, control and supervise
the conduct of Peguam Syarie.
(3) Notwithstanding subsection (1), the
Majlis may exempt any member of the Judicial and Legal Service of the
Federation or any person appointed under section 3 of the Legal Aid Act 1971 from
the provisions of this section.
(4) Notwithstanding anything contained
in any other written law, no person other than Peguam Syarie or a person
exempted under subsection (3) shall be entitled to appear in any Syariah
Court on behalf of any party to any proceedings before it.
[13] Under the above provisions the Majlis in
empowered to make rules in two broad areas; that are firstly, to provide
procedure, qualifications and fees for the admission of peguam
syarie and secondly, to regulate, control and supervise the conduct of peguam
syarie.
[14] From these empowering provisions, the Majlis enacted
the impugned r 10, which provides as follows:
(a)
(i) is a Muslim and has passed the final
examinations which leads to the certificate of bachelor's degree in Syariah
from any university or any Islamic educational institution recognised by the Government
of Malaysia;
(ii) is a Muslim member of the judicial
and legal service of the Federation;
(iii) is a Muslim advocate and solicitor
enrolled under the Legal Profession Act 1976;
(iv) has served as Syariah Judge or as a
Kathi with any State Government in Malaysia for a period of not less than
seven years;
(b) has attained the aged of twenty-one
years;
(c) is good behaviour and:
(i) has never been convicted in Malaysia
or any other place of any criminal offence;
(ii) has never been adjudged a bankrupt;
(d) is a Malaysia citizen;
(e) as an advocate and solicitor, has
passed the Sijil Peguam Syarie examination.
[15] For the purpose of appreciating the application of r
10 in relation to s 59(1) of Act 505, it is crucial to determine the ambit
and the language used in the section. It must be noted that s 59(1) begins
with the opening words 'subject to subsection (2), the majlis may admit any
person with sufficient knowledge of Islamic law to be peguam syarie ...'
In clear plain language, the provision must be read subject to sub-s (2). It means
that the discretion of the Majlis to admit any person with sufficient
knowledge of Islamic law to be peguam syarie is subject to sub-s (2).
It does not stand alone without condition.
[16] To my mind 'admission' is at the discretion of the Majlis
because the word 'may' is used in s 59(1) of Act 505. The word 'may
admit' denotes that it is not mandatory for the Majlis to admit a
person solely on the basis of having sufficient knowledge of Islamic law. In
my view this provision must be read to mean that the Majlis in
exercising its discretion is subject to the rules made under sub-s (2). So
even if a person has sufficient knowledge of Islamic law, the Majlis may
still decline an application for admission on other grounds and this could be
for reasons stipulated in sub-s (2).
[17] From my reading of these provisions the intent of
the legislature is clear. In plain language of this provision alone I am
unable to agree with the contention by Encik Ranjit Singh that, the words 'a
person with sufficient knowledge of Islam law' is all that is required for
the purpose of admission under s 59(1). Such cannot be what s 59(1)
contemplates. It is also clear that it is the intent of the legislature to
delegate to the Majlis the power to determine the necessary
qualification at its discretion. Hence the Majlis is empowered to add
vary or to limit the said qualification. Whether or not the imposition of the
requirement that a person must be a Muslim is within the power of Majlis must
therefore depend on the meaning of the word qualification used in that
section. If the Legislature had intended that knowledge of Islamic law per se
is sufficient then s 59(1) would have been enacted to read instead, 'The
Majlis shall admit any person having sufficient knowledge of Islamic Law
...'. Since the opening words of s 59(1) begin with 'subject to subsection
(2)', it is clear that the qualification of a person with sufficient
knowledge of Islamic law in that s 59(1) is subject to the power given to the Majlis in
sub-s (2). That being the case, I hold that the Majlis is empowered by
virtue of s 59(2) to regulate the qualification of a peguam syarie.
[18] In exercising its legislative power, the Majlis may
provide for procedure, qualification and fees of peguam syarie. The Majlis
had provided for this through the Peguam Syarie Rules 1993 (PU (A)
408/1993). My next task then is to determine if the word qualification used
in the legislation is wide enough to permit the Majlis to impose a condition
that a peguam syarie must be a Muslim.
[19] For the purpose of determining the meaning of
qualification in s 59(1), I am inclined to accept the submission of learned senior
federal counsel that in absence of the definition of qualification in Act 505
or in the Interpretation Acts 1948 and 1967, the plain and ordinary meaning
of the word is to be used, as decided in Chin Choy & Ors v Collector
of Stamp Duties [1979] 1 MLJ 69. The dictionary meanings of word qualification
are enumerated in the written submission of learned senior federal counsel.
First, the meaning found in the Concise Oxford English Dictionary,
(11th Ed), which states as this:
Qualification: 1. The action of qualifying or the
fact of becoming qualified. 2. a pass of an examination or an official completion
of course. 3. a quality that qualifies someone for a job or activity. 4. a
condition that must be fulfilled before a right can be acquired. 5. a statement
or assertion that qualifies another.
Black's Law Dictionary, (9th Ed), qualification
means: Qualification. (16c) 1. The possession of qualities or properties (such
as fitness or capacity) inherently or legally necessary to make one eligible
for a position or office, or to perform a public duty or function <voter
qualification requires one to meet residency, age, and registration
requirements>. (Cases: Officers and Public Employees 35.) 2. A
modification or limitation of terms or language; esp., a restriction of terms
that would otherwise be interpreted broadly <the contract container a
qualification requiring the lessor's permission before
exercising the right to sublet> 3.
CHARACTERIZATION (1) - qualify, vb.
[20] In summary the word qualification or kelayakan as
used in s 59(2) is wide enough to include the possession of qualities or
properties such as fitness or capacity which is inherently or legally
necessary to enable one to be eligible for a position or office. This
includes modification or limitation or restriction or even characterisation.
The same meaning is found in the P Ramanatha Aiyar's, The Law Lexicon With
Legal Maxim, Latin Terms and Words & Phrases, (2nd Ed) 1977.
Therefore in its plain and ordinary meaning the word, qualification is certainly
wide enough to allow the Majlis to impose the condition appearing in r
10.
[21] In observing the scheme and purpose of the
delegation of power to the Majlis, I cannot help but agree with
learned counsel Tuan Hj Sulaiman that s 59(1) merely provides the necessary
condition but not sufficient condition to qualify a person for admission as peguam
syarie. The power delegated to the Majlis is sufficiently wide to
enable the Majlis to enact a condition that an applicant for admission
as peguam syarie must be a Muslim, in addition to having sufficient
knowledge of Islamic law.
[22] At this juncture, perhaps it would be appropriate
for me to make my position clear. To obviate any doubt, I am not, in any way,
adjudicating on the wisdom of the Majlis in imposing such a condition,
which was, as I understand it, based on its interpretation of the Syariah.
This, I believe, is not within the preview of this court. I am only concern
here with the exercise of power by the Majlis in relation to the law
and its validity juxtaposed with the relevant provisions of the Federal
Constitution. The Majlis had, in its wisdom, based on its
interpretation of the Syariah, seen it fit to require such qualification. In
the circumstances, it is therefore neither proper for this court to doubt nor
question the wisdom of the Majlis in imposing such a condition. I will
deliberate on the issue of constitutionality in the foregoing paragraphs.
[23] It is pertinent to note that the Majlis was
created by Act 505 and is entrusted with various functions and duties
thereunder. The powers relating to the Syariah courts are in part IV and on
the prosecution and representation in Syariah court are that in part V. The
rationale of the Legislature in delegating the power to the Majlis to
determine matters within the Syariah had been clearly explained by learned
counsel Tuan Hj Sulaiman. It makes good sense to delegate such power
considering that the legislature may not always be in the position to
appreciate matters of Syariah. The constituent of the Majlis as found
in s 10 is made up of amongst others five persons learned in Islamic studies.
Tuan Hj Sulaiman had also addressed the court on the underlying reasons for
the Majlis to impose such a condition as found in the decision of the Muzakarah
Jawatankuasa Fatwa Majlis Kebangsaan in exh WMS1 in encl 40.
[24] Having said that, I should not allow myself to be
placed in a somewhat precarious position of delving into the fatwa here,
notwithstanding that parties had gone to great length to deliberate on the
fatwa relating to the requirement that a peguam syarie must be a
Muslim. I agree with Encik Ranjit Singh that the fatwa issued by the Muzakarah
Jawatankuasa Fatwa Kebangsaan Malaysia in exh WMS1 was not one issued under
s 34 as required under Act 505. The fatwa, if it was issued under that
section, must be recognised by all the Syariah Courts of Wilayah Persekutuan
under s 34(4). Nevertheless I take judicial notice of the Syariah
interpretation relied by the Majlis in making the impugned decision.
[25] My attention has further been drawn to the disparity
in practice in different states in relation to the admission of peguam
syarie. I was urged by Encik Ranjit Singh to note that the position in
the State of Selangor and Kelantan is to allow non-Muslim to be a peguam
syarie. I see two reasons why this could have happened. First, it must be
borne in mind that the state legislature may enact laws on its own autonomy
in relation to matters within the State Legislative List, in the Ninth
Schedule, List II of the Federal Constitution. Hence on matters within the
State Legislative List, it is no surprise that there could be disparity and
differences between enactments of one state with another. A simple example
that immediately comes to my mind is the differences in the interpretation of
'Malay' in the various state enactments relating to Malay Reserve Land. The
definition of 'Malay' in these enactments differs in as many as the number of
the states in Malaysia.
[26] I am not too clear though as to the purpose of
addressing this issue of disparity of practice. If the purpose is to convince
this court that since the states of Selangor and Kelantan allow a person who
is a non-Muslim to be a peguam syarie, therefore the position in
Wilayah Persekutuan Kuala Lumpur should be likewise, I regret to say that I
am unable to agree, although that may be ideal. The fact of the matter is
that there are differences in Syariah interpretation and this would account
for the second reason for such disparity, which I shall next elaborate.
[27] Disparity may also be to the differences in the
interpretation of the Syariah by scholars on this issue. This divergence has
always been accepted in Islam so long as it does not transgress the primary
principle of the Syariah. The fact that there are non-Muslim peguam syarie
in other States of Malaysia or that the legal position was different
before than now means that there is more than one acceptable Syariah
interpretation on this particular matter. Though personally I am inclined to
agree that it would have been more appropriate to allow non-Muslim to be a peguam
syarie in a multi-racial and multi religious society, I am however in no position
to question the choice made or the wisdom of the Majlis in accepting a
given interpretation.
[28] In a situation where the Syariah is subject to many
acceptable interpretations, it is entirely for each State Legislature in its
wisdom to choose which of interpretation the particular state deems
appropriate and applicable to its people. After all, in a democratic country,
it is the people of the state that chooses its government through the
election process. In the present case I have the occasion to address this
issue in my earlier decision in Tan Sri Abdul Khalid bin Ibrahim v Bank
Islam Malaysia Bhd & another suit [2009] 6 MLJ 416; [2010] 4 CLJ 388.
To avoid my repetition on this issue, suffice is to say, the state government
here too, based on the doctrine of siasah Syariah, has the right to choose
which amongst the different interpretations would reflect the wishes,
aspiration and need of its people (see Mohamed Hashim Kamali, on Siasah Syariah
or the Policies of Islamic Government in the American Journal of Islamic
Social Sciences Vol 6 No 1 1989). The decision of the Majlis is based
on its interpretation of the Islamic jurisprudence. Unless a challenge is
made on the correctness of the Majlis's interpretation, its decision
remains.
[29] With regard to the purposive interpretation, it may
be necessary that a peguam syarie must be a Muslim for the purpose of
achieving the object of Act 505, which is to enforce and administer Islamic
law as well as to provide for the constitutions and organisation of Syariah
court. The Syariah court has jurisdiction only over persons professing the
religion of Islam (see para 1, List II, 9th Schedule of the Federal
Constitution). Persons appearing before the Syariah courts therefore should
also be subject to its jurisdiction. The Syariah courts must be able to
enforce its laws and rules on a peguam syarie, as for instance, when
contempt or any breach of the rules is committed.
[30] Encik Ranjit Singh also suggested that such decision
by the Majlis, if goes unchecked and if stretched to its extreme,
would even allow the Majlis to impose a condition or qualification, such as
only a male Muslim or a person who had performed the Hajj only may be
admitted as peguam syarie. To my mind, such extremity is most
unlikely. The Syariah, like equity, is based on good conscience and common
sense. Above all else, the Syariah has its sources firstly in the divine
Quran followed by the Sunnah, Ijma, Qiyas and Ijtihad. The Syariah
has its own rules of interpretation and requires an intelligent empirical
approach founded on dialectics, forces in the academe, characteristics of
races, societies and epochs depending upon their customs, traditions and
particular culture of a particular society, which are acceptable in the Usul-Fiqh.
I do not propose to elaborate on the rules of interpretation of the Syariah
but I am confident that the Syariah simply cannot condescend to such
absurdity especially when the object of the Syariah is to enjoin good and forbid
evil. To suggest that the Syariah delved in such absurdity would seem rather
naive. It simply exhibits a degree of ignorance of these processes which is
quite perplexing, especially so coming from the applicant who, I take it, has
sufficient knowledge in Islamic law. Suffice to say that if there is such
absurdity, it can easily be demolished upon proper application of the Syariah
interpretation. As I have earlier stated, in the present case there is no
challenge made on the Syariah interpretation before this court. The decision
of Majlis remains a good Syariah interpretation.
WHETHER R 10 IS UNCONSTITUTIONAL IN
CONTRAVENTION OF ART 8
[31] I shall now come to deal with the issue of
unconstitutionality. The question therefore is whether r 10 is repugnant to
the relevant provisions of the Federal Constitution. Encik Ranjit Singh
contended that r 10 is unconstitutional as it violates the equal protection
clause of art 8(1). He contended that r 10 is discriminatory and is
unconstitutional in the light of art 8(2). The exception in art 8(5) of the
Federal Constitution, according to him, does not apply because this
discrimination does not fall under these exceptions. It is also his contention
that art 8(5)(b) the exception to discriminatory practice cannot apply
because cl (b) only allows prohibition or restriction of office or
employment. Legal practice is a profession and is not covered by this
provision. However, he conceded that case laws allow discrimination on the
ground of reasonable classification based on intelligible differentia but he
contended, there is no nexus between the classifications in question with the
object of Act 505.
[32] Learned senior federal counsel Encik Arik Sanusi
does not differ in his view with Encik Ranjit Singh on the interpretation and
implication of art 8. It is clear from decided cases such as the case of Malaysian
Bar & Anor v Government of Malaysia [1987] 2 MLJ 165, that equal
protection is not absolute and it does not mean that all laws passed by a
legislature cannot create differences as to whom they apply. The doctrine of reasonable
classification has been the test for such cases. This was decided in the long
list of cases on criminal prosecutions, such as the Federal Court case of Datuk
Hj Harun Idris bin Hj v Public Prosecutor [1977] 2 MLJ 155 and followed
in the later cases of Abdul Ghani bin Ali @ Ahmad & Ors v Public
Prosecutor [2001] 3 MLJ 561; [2001] 3 CLJ 769 and Danaharta Urus Sdn
Bhd v Kekatong Sdn Bhd (Bar Council) Malaysia, intervener) [2004] 2 MLJ 257. Learned senior federal
counsel however contended that there is a reasonable classification in this
case. The classification he says, bear reasonable nexus with the object of Act
505. In determining whether the classification bears the nexus with the
object of the law following Datuk Hj Harun Idris v Public Prosecutor [1977]
2 MLJ 15 he submitted, one has to ascertain the object of the law from the
law itself. The Supreme Court has applied this doctrine in Malaysian Bar
& Anor v Government of Malaysia [1987] 2 MLJ 165 which held that the
court may infer the real object from the whole scheme of the Legal Profession
Act 1976. In Malaysian Bar & Anor the Legislature is presumed to
understand and correctly appreciates the need of its people. Hence the laws
are said to have directed to problems manifest by experience and
discrimination which are based on adequate grounds.
[33] Learned senior federal counsel contended that Act
505, in particular s 59(1) and 59(2), read together with its title and the
preamble as well as item 1 of the State Legislative List in the Ninth
Schedule, will show that only Muslim should be the peguam syarie. The
scheme of Act 505 is first made to be applicable only to Muslims. If the
Legal Profession Act 1976 is applicable to all advocates and solicitors, the
situation is no different with peguam syarie, he said. Besides Act 505
the admission of peguam syarie is also found in the Akta Tatacara
Mahkamah Syariah (Wilayah Persekutuan) 1998 which requires a wakalah as
a procedure. According to learned senior federal counsel the Akta Tatacara
Mahkamah Syariah falls under the State Legislative List, and it is within the
State Legislature to legislate.
FINDINGS
[34] The test on discriminatory laws is encapsulated in
the Federal Court case of Datuk Harun bin Haji Idris. The Federal
Court had adopted three of the nine principles based on Indian decisions in
dealing the constitutional provisions on laws against discrimination or equal
protection provision. The said tests are first, whether the law is
discriminatory, if it is not, it is good law. If the law is discriminatory,
then because the prohibition on equal treatment is not absolute we need to
inquire if it is expressedly allowed by the Constitution or by judicial
interpretation. If it is allowed, it is good law and if it is not, the law is
said to be void. Secondly discriminatory law is good law if it is based on
'reasonable' or 'permissible' classification provided that:
(a) the classification is founded on an
intelligible differentia which distinguishes persons that are grouped
together from others left out of the group; and
(b) 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 basis 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.
[35] Thirdly there is always a presumption that the
Legislature in enacting laws has wide power of classification, operating
differently to different group of people to give effect to its policy, and in
considering art 8, the impugned law is constitutional.
[36] Having stated that, I will now turn to consider the
application of these tests to the facts of the present case. Act 505 had
delegated to the Majlis the power to make provisions on the
qualification of peguam syarie. The object of Act 505 relates to, the
enforcement and administration of Islamic laws, the constitution and
organisation of Syariah courts and related matters in Wilayah Persekutuan.
The enforcement and the organisation of the Syariah court
include having competent and qualified prosecutors and Religious Enforcement
Officers and legal representation by qualified peguam syarie. In the Federal
Territories, the Majlis in exercising its delegated power made rules,
inter alia, that only a Muslim may be admitted as peguam syarie. I had
made a finding that the Majlis is empowered under s 59(2) to legislate on the
qualification of a peguam syarie. The power to legislate based on the
empowering provision and the broad meaning of the word qualification allows
the Majlis to impose a condition that only a Muslim may be admitted as
peguam syarie. I have also pointed out earlier that the requirement of
a peguam syarie to be a Muslim is made by the Majlis as a
matter of Syariah requirement, based on the Islamic jurisprudence. The
decision of the Majlis is based on the some Syariah principle in the
decision of the Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan and
also, Siti Nurhayati bt Mohd Daud v Dato' Mohd Zaidi bin Mohd lain JH
XXII1/1 1428H the High Court Syariah decision in the case of.
[37] I have also noted that, there is at least another
school of thought on this requirement and it explains why there are states in
Malaysia that allow a non-Muslim to be a peguam syarie. I have also
observed that the Majlis in this case had an interpretation that is
different for the other states. The wisdom of such a decision is a matter of Syariah interpretation and
outside the ambit of this court to adjudicate. However, as I have also stated
earlier, a responsible government in its wisdom based on the doctrine of siasah
as Syariah may adopt any one of the acceptable Syariah views that it
deems appropriate and applicable to its people, even if they are in conflict.
This is on the presumption that the state government understands the wishes,
aspiration and need of its people, it is not for the court to do so or decide
what would be in the best interest of the people. The laws are therefore made
directed to the problems, manifests by experience and that it discriminates
on adequate grounds. Thus if the Legislature deems it necessary that for the
purpose of achieving the object of Act 505, it requires a rule that only a
Muslim may be admitted as peguam syarie and that rule is made directed
to the problem, manifest by experience and that it discriminates on adequate
grounds, then the law does not violate art 8 of the Federal Constitution. It
is therefore a good law.
[38] The case related to the interpretation of art 8
shows that if the law which discriminates is based on reasonable
classification it can be held valid as decided in Danaharta Urus Sdn Bhd v
Kekatong Sdn Bhd (Bar Council Malaysia, intervener) [2004] 2 MLJ 257. The
classification which eventually allows only Muslims to be peguam syarie according
to Encik Ranjit Singh has no nexus to the object of Act 505, because according to him a non-Muslim as a peguam
syarie does not detract from the object of Act 505. The object of Act 505
is to enforce and administration of Islamic Law, the constitution and
organisation of Syariah courts and related matters. Even a non-Muslim
according to Encik Ranjit Singh would be able to assist in achieving that
object so long as he has sufficient knowledge in Islamic law.
[39] On the contrary, learned counsel for the majlis and
senior federal counsel contended that there is another dimension in the
approach towards achieving the object of Act 505. This dimension is faith.
The Muzakarah on Hukum Melantik Orang Bukan Islam sebagai Peguam
Syarie in exh WMS1 explains the reason in arriving at a rejection of a
non Muslim peguam syarie. It was made after giving due consideration of the advantages as well as its
disadvantages. Based on the various rules cited therein, the Muzakarah concluded
that a peguam syarie must be a Muslim. In other words the person must
have faith in the religion of Islam. Faith in Islam is more than either a mental
agreement with certain facts or a mechanical obedience of certain rules, but
rather a person's dedication to God's will and the recognition of His
sovereignty. This has consequences for his behaviour in the family, in
society and in the state. Without question, the Islamic faith cannot be
described as a mere external membership to a religious group or as the
theoretical agreement with particular dogma. This seems to be the reason for
the classification and it is founded on an intelligible differentia that has
a rational relation to object of the rule.
[40] Based on the requirement of faith by the Syariah, in
my view there is no irrational differentia in this case as Syariah Court
deals specifically with the personal laws of persons professing the religion
of Islam. There is a seamless nexus therefore between requiring a peguam
syarie to be a Muslim, to represent litigants who are Muslims, in the
adjudication of Islamic law, which in this country is only applicable to the
Muslims vis-a-vis the object of Act 505. Faith
being the central in the whole equation. In the Malaysian Bar case,
the discrimination against lawyers of less than seven years standing from
serving the bar or its committee was held to be valid applying the
intelligible differentia test. This is because the Supreme Court found that
the classification basing on professional experience is based on intelligible
differentia. It is in the interest of public that the Bar should be
independent and managed by experienced lawyers because such a Bar ensures an
experienced and independent judiciary. There is therefore a strong nexus
between the durational experience classification and the legislative policy
or object of the legislation.
[41] The object of the Act 505 is to enforce and
administer Islamic law as well as to constitute and organize of the Syariah
courts, and related matters. Having a peguam syarie who professes the
religion of Islam will no doubt with ease achieved the object of Act 505;
faith being a dimension necessary in its approach. In such a case, the
classification can be regarded as reasonable as there is nexus between the
impugned rule and the object of Act 505. It is therefore my considered view
that the impugned r 10, does not contravene art 8 of the Federal Constitution
and is therefore not unconstitutional.
WHETHER R 10 IS UNCONSTITUTIONAL IN
CONTRAVENTION OF ART 5 AND ART 10
[42] Though art 5 and art 10 of the Federal Constitution
were raised by the applicant, however these two areas of the Constitution
were not central to the challenge posed by the applicant. For completeness however,
on art 5 the Federal Court case of Abdul Aziz bin Mohd Alias v Timbalan
Ketua Polis Negara, Malaysia & Anor [2010] 4 MLJ 1; [2010] 3 CLJ 643
has erased doubts on the meaning of the right to life in art 5(1). The
Federal Court uses the definition of 'life' in Pihak Berkuasa Negeri Sabah
v Sugumar Balakrishnan [2002] 3 MLJ 72; [2002] 4 CLJ 105, to exclude the
right to livelihood. Thus the allegation by the applicant on the loss of the
livelihood is misplaced because the applicant is not deprived to practice her
profession as an advocate and solicitor in the civil court. The relationship
between art 5(1) and art 8(1) is best summed up in Sivarasa Rasiah v Badan Peguam Malaysia
& Anor [2010] 2 MLJ
333; [2010] 3 CLJ 507 as this:
... it is clear from the authorities thus far
discussed that 'in accordance with law' in art 5(1) refers to a law that is
fair and just and not merely any enacted law however arbitrary or unjust it
may be. So long as the law does not produce any unfair discrimination it must
be upheld. This is the effect of the equality limb art 8(1)... if s 46A
passes the test of the fairness as housed in the equality clause then it is a
fair law and therefore is a valid law for the purposes of art 5(1) ...
[43] On art 10, which guarantees the right to association
is of no relevance to this application. This is because art 10 deals with the
right to form association and the applicant cannot enforce her application or
force the respondent to accept her application as a member.
DECISION
[44] Based on all the above reasons I dismissed the
application of the applicant in encl 1 and I also dismissed the first
respondent's application in encl 17. As this matter involves an issue of
public interest, I order for each party to bear its own costs.
Applicant's and first respondent's
application dismissed.
Reported by Kohila Nesan
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