Two lawsuits today spotlight supremacy of constitutional guarantees vs Islamic law

Lawyer for the Attorney-General Shamsul Bolhassan speaks to reporters at the Palace of Justice, Putrajaya, August 13, 2015. — Picture by Yusof Mat Isa
Lawyer for the Attorney-General Shamsul Bolhassan speaks to reporters at the Palace of Justice, Putrajaya, August 13, 2015. — Picture by Yusof Mat Isa

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KUALA LUMPUR, Aug 13 — The country’s highest court sits today to hear two separate cases that essentially deal with one fundamental question: will future Malaysians have the right to challenge Shariah enactments that encroach on their constitutional rights regardless of their religious background?

In their appeals to outlaw cross-dressing among Muslim men and to bar non-Muslims from practising as Shariah lawyers, state Islamic authorities have argued that fundamental constitutional rights guaranteed to all Malaysians cannot be applied to determine the validity of Islamic laws.

But lawyers and observers have told Malay Mail Online that should Federal Court rule in favour of the Islamic religious bodies, all Malaysians — but especially Muslims — will effectively lose their only recourse for judicial challenge against discriminatory Shariah laws that they argue will see further curbs to their civil liberties.

“Shariah laws are just penal codes that are creations of human beings, they can be challenged and we should be allowed to challenge them,” lawyer and activist Siti Kasim told Malay Mail Online over the phone yesterday.

“If the appeals are allowed by our learned judges, basically any of the provisions in Shariah law in any state, we will not be able to challenge them as the transgender applicants did in Negri Sembilan.”

Siti was referring to the first among the two cases, where the Court of Appeal had in November 7 last year ruled that Section 66 of the Negri Sembilan Shariah Criminal Enactment 1992 prohibiting cross-dressing by Muslims was unconstitutional and void.

When the case was taken up in the country’s apex court on January 27, the Negri Sembilan government was allowed to challenge the ruling together with four other applicants: its Islamic Religious Affairs Department (JHEAINS), JHEAINS’ director, its chief enforcer, and the state’s chief Shariah prosecutor.

It was later revealed in May that Negri Sembilan, represented by prominent lawyer Tan Sri Muhammad Shafee Abdullah, will argue if Islamic laws can be tested with Part II of the Federal Constitution.

Part II which covers Articles 5 to 13, deal with the fundamental liberties guaranteed to all Malaysians, including the right to non-discrimination and equality before the law.

“This has a larger implication. It may also suggest that Muslims have lesser rights in Malaysia. I think any country that has different rights for different people, cannot achieve its highest standards of human rights,” said S. Thilaga of transgender advocacy group Justice for Sisters.

Similar arguments will be put forth by the Federal Territories Islamic Religious Council’s (MAIWP) lawyer Mohd Haniff Khatri Abdulla, in the second case where a non-Muslim lawyer Victoria Jayaseele Martin is seeking to be admitted as a Shariah lawyer in the federal territories.

Victoria succeeded in crossing an earlier hurdle at the Court of Appeal in 2013, after it was decided that the part in Rule 10 which said that only Muslims can be admitted as Shariah lawyers, exceeds the boundaries of Section 59 of the Administration of Islamic Law (Federal Territories) Act 1993.

Section 59 states that “any person having sufficient knowledge of Islamic Law” may be admitted as a Shariah lawyer in the Shariah Courts and does not impose a requirement for the person to be Muslim.

"If the argument is allowed, it would mean that Muslims in this country would not enjoy the constitutional protections that non-Muslims will enjoy.

"And the constitutional protections are the fundamental liberties in the Federal Constitution, which includes the freedom of speech, freedom of association, the right to be treated equally," Victoria’s lawyer Ranjit Singh told Malay Mail Online when contacted yesterday.

Siti warned that Muslims stand to lose if the rulings side with the Islamic authorities, as the latter can then enact laws labelled as Islamic, effectively opening the avenue for religious enforcers to dictate aspects of a Muslim’s life.

”This is not about undermining Islam. We have the right to question any provisions in any law, whether civil or Shariah. We must have some recourse to question them,” she added.

Like Siti, lawyer Andrew Khoo has suggested that the rulings may also impact non-Muslims, especially in legal disputes with Muslim spouses over child custody rights.

“So at the end of the day, the question to be asked in terms of fundamental liberties, do these same liberties apply to everyone? Or somehow do Muslims have less protection under the Federal Constitution than non-Muslims?” asked Khoo, who is also the co-chair of the Bar Council’s human rights committee.

“And since Islamic enactments only apply to persons professing the religion of Islam, then essentially you are saying there is one level of protection for Muslims and another level for non-Muslims. That cannot be the case in a public law matter such as fundamental liberties.”

In December last year, the federal minister in charge of Islamic affairs, Datuk Seri Jamil Khir Baharom claimed that the Federal Constitution empowers Shariah laws and does not limit the Islamic code, warning of vigilantism if there are constant judicial reviews and challenges between civil and Shariah courts.

Jamil had also previously alleged of a “new wave” of assault on Islam here, accusing rights activists and groups of colluding with so-called enemies of Islam to put its religious institutions on trial in a secular court.

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