Legal institutions

4.1 Law-making

The legislature is the body with the primary law-making authority in Malaysia. The courts also make law when they interpret legislation. As mentioned above, the judicial interpretation of legislation also forms part of the unwrit­ten law of Malaysia.

The legislatures

The federal legislature (Parliament) consists of the King and two chambers: the Senate (Dewan Negara, which is the upper House), and the House of Represen­tatives (Dewan Rakyat, the lower House).⁸⁰ Besides Parliament, each state also has its own legislature called the State Legislative Assembly. Unlike Parliament, a state legislature has only one chamber.

Legislative process

Parliament makes laws by introducing drafts known as Bills which are passed by both Houses after debate, or in some cases, by the House of Representatives alone.⁸¹ The legislative process must follow the procedure provided in Part IV, cap V of the Federal Constitution and the Standing Orders of both Houses.⁸² Although a Bill may be introduced by any member, it is rare for a Bill to be introduced by a private member. In practice, this is usually done by a Minister. All Bills, except â€?money Bills',⁸³ maybe first introduced in either House.

At the First Reading, the Minister merely reads out the title of the Bill and then proceeds to give oral notice as to when he or she wishes to move the Second Reading.⁸⁴ Copies of the Bill will be made available to all the members before the

79 H Kaur, �Malaysian Legal Information on the Web', International Journal of Legal Information, vol. 34, no. 3, 2006, p. 526.

80 Federal Constitution, art 44.

81 Federal Constitution, arts 66(1) and 68(1).

82 Wu Min Aun, op. cit., p. 223.

83 Federal Constitution, art 67.

84 WuMinAun,loc.cit.

Second Reading. At the Second Reading, the Bill will be explained by the person in charge. This will be followed by a debate on its general merits and principles. After the Second Reading, the Bill is committed to a Committee of the whole House, which is in essence the whole House sitting as a committee. The intention is to allow members the opportunity to discuss details of the Bill and to propose amendments in a less formal proceeding.^[544] During this session, members may only speak on the details of the Bill, and not on its principles.^[545] Upon completion of the Committee discussion, the Committee reports to the House. At this stage, the chairman of the Committee leaves the chair and the Committee Stage comes to an end. Sometimes, the Bill is not considered by the Committee of the whole House but by a Special Select Committee - an ad hoc committee appointed for a particular purpose.^[546] A Committee of Selection determines the size and members to be nominated to the Committee. However, for all other purposes, the Special Select Committee is similar to the Committee of the whole House.

When the House resumes sitting, the Minister reports that the Bill has been considered and accepted by the Committee with or without amendments.^[547] He or she then moves a motion that the Bill be read a third time and passed. When this motion is agreed to, the Bill is considered to be passed by that particular chamber. The Bill will subsequently be sent to the other House for consideration. After going through similar stages in the second House, the Bill is returned back to the first House, with or without amendments. Where there are amendments, the first House may either accept or reject them. Should it choose to reject the amendments, a Committee will be appointed to draft the Reason or Reasons for rejection. These Reasons will be sent to the second House, which is given the task of deciding whether or not to continue with the amendments or to accept their rejection.

After approval of both Houses, the King gives the Royal Assent by affixing the public seal.^[549] Viewed theoretically, an Act is made by the King acting on the advice of and after approval by the two Houses of Parliament. This is a result of historical factors.^[550] In the past, the King had sole law-making power and Parliament merely acted as an advisory body. However, the King's absolute power gradually diminished as a result of constitutional evolution. For a long period of time, the King's legislative power was restricted to merely the giving of assent to Parliament. The situation has been changed somewhat by the Constitutional (Amendment) Act of 1984, which amended art 66(4) and (5).⁹² Now, even if the Royal Assent has not been effected, a Bill which has been duly passed by both Houses nevertheless becomes law as if it had been assented.⁹³ Royal discretion has been effectively removed by such constitutional amendments.

After receiving the Royal Assent, the Act is published. A Bill becomes law on receiving the Royal Assent but only comes into force when it has been published.

The legislative procedure in the State Assemblies is almost similar to that in Parliament. However, as mentioned above, a State Legislative Assembly has only one chamber. State law is assented to by the Sultan or Governor, who has no power to return a Bill approved for reconsideration by the State Legislative Assembly.⁹⁴

4.2 Adjudicationoflaw

The courts of law are the primary adjudication bodies in Malaysia. The court system consists of the Superior Courts, Subordinate Courts, and courts with specific jurisdiction.

Since independence in 1957, Malaysian courts have undergone several reor­ganisations. A three-tier system existed at the time of independence: the High Court, the Federal Court (which replaced the Court of Appeal) and the Privy Council. In 1985 appeals to the Privy Council were abolished. This resulted in a two-tier system. The Supreme Court replaced the Federal Court as the final court of appeal. The latest reorganisation was in June 1994, which restored the three-tier structure: the High Court of Malaya, and the High Court of Sabah and Sarawak at the first level, the Court of Appeal at the second level and the Federal Court at the top.⁹⁶

The Superior Courts

After independence in 1957, and even after the formation of Malaysia in 1963, the right to appeal to the Privy Council was preserved by art 131 of the Federal Constitution. The Courts of Judicature Act 1964 was enacted to make detailed provisions for reference by appeal to the Privy Council. In 1975 appeals to the Privy Council for criminal cases tried under the Essential (Security Cases) Regula­tions of 1975 were abolished.⁹⁷ This was followed by the abolition of all appeals to the Privy Council in criminal and constitutional matters. Appeals to the Privy

92 ibid.

93 FederalConstitution,art66(4).

94 TunMohamed Suffian, op. cit, p. 103.

95 Shaikh Mohamed Noordin and Lim Pui Keng, An Overview of Malaysian Legal System and Research (2008) NYU Law Hauser Global Law School Program.

96 Ahmad Ibrahim and Ahilemah Joned, op. cit, p. 96.

97 KS Jomo and S N Wong, op. cit, p. 11.

Council were fully abolished in 1985. Since then, the Malaysian Supreme Court (now the Federal Court) has served as the highest court of the Federation.

Federal Court

The Federal Court is constituted by art 121(2) of the Federal Constitution. It consists of a President of the Court (the Chief Justice), the President of the Court of Appeal, the Chief Judges of the High Courts, and until the King otherwise provides, seven other judges and such additional judges as may be appointed by the King on the advice of the Chief Justice for such period of time as he may specify.^[551] The Federal Court normally sits with a quorum of three members.^[552] However, in cases concerning serious issues of law, the Federal Court may sit with a quorum of five members, or any larger odd number.

Save as provided in the Act, the Federal Court has the same jurisdiction and powers as the High Court. The Federal Court has three jurisdictions: original, consultative and appellate, but its jurisdiction does not extend to those matters under the jurisdiction of the Syariah Court. The Federal Court's original juris­diction gives it the exclusive power to determine the validity of laws made by Parliament and by State Legislative Assemblies. The Court also has exclusive jurisdiction to determine disputes on any other question between the states or between the Federation and a state,^[553] but in such a case, it may only pronounce a declaratory judgment.^[554] Its consultative jurisdiction allows it to determine any question referred to it by the King. The King may refer to the Federal Court any question as to the effect of constitutional provisions. Therefore, the Court may determine constitutional matters either by exercising its ordinary civil juris­diction as provided by the Federal Constitution,^[555] or by reference made by the King. The Court shall pronounce in open court its opinion on any question so referred to it.^[556]

With the Federal Court's leave, civil^[557] and criminal^[558] appeals from the Court of Appeal may also be heard.

Court of Appeal

The Court of Appeal is constituted by art 121 of the Federal Constitution.

High Court

The High Courts are constituted by art 121 of the Federal Constitution. There are two High Courts of coordinate jurisdiction and status in Malaysia: the High Court in Malaya and the High Court in Sabah and Sarawak.^[562] Each High Court consists of a Chief Judge and at least four other judges.^[563] The Constitution provides for 47 judges of the High Court of Malaya and 10 for Sabah and Sarawak.^[564] It also provides for the appointment of Judicial Commissioners for a specific period or purpose, who have the same powers as High Court judges, but Iypicallyenjoyonly two-year tenures.^[565] The trend in recent times has been to increase the number of appointments of Judicial Commissioners presiding in the High Courts.

Normally, a person may only be tried in the High Court after being committed for trial following a preliminary inquiry. There is an exception where the trial has been transferred from the Subordinate Court to the High Court, and where the accused is charged with a security offence or under the Dangerous DrugsAct 1952.^[566]

The Subordinate Courts

The highest of the Subordinate Courts is the Sessions Court, followed by the Magistrates’ Court. The Penghulu's Court ranks the lowest and only exists in West Malaysia.^[567] It has since become non-functional.^[568]

Sessions Court

A Sessions Court Judge is appointed by the King on the recommendation of the Chief Judge. Such a person must first be a member of the Judicial and Legal Service of the Federation.^[569] Appeals from Sessions Courts in civil and criminal cases go to the High Court in the same way as appeals from Magistrates’ Courts.^[570]

The Sessions Court has original jurisdiction in both civil and criminal cases. Its criminal jurisdiction extends to all criminal offences short of those punishable by death.^[571] Likewise, it can impose any sentence authorised by law except the death sentence.^[572] However, it has no jurisdiction in the suits or proceedings specified in s 69 of the Subordinate Courts Act 1948. Its civil jurisdiction is unlimited in actions involving motor vehicle accidents, landlord and tenant disputes, and distress applications for non-payment of rent.^[573] For other matters, civil suits are confined to disputes not exceeding RM 250 000.^[574]

Magistrates’ Court

The Magistrates’ Court has jurisdiction to try civil and criminal cases and to issue summonses and warrants. Magistrates are appointed by the respective Rulers of the states, but First Class Magistrates are only appointed on the recommendation of the Chief Judge.^[575] Most Second Class Magistrates are lay magistrates who were previously court interpreters.^[576] A Magistrate’s specific jurisdiction depends onwhetherhe orshe is a First or Second Class Magistrate.^[577] The formerhas more extensive jurisdiction than the latter. Appeals from Magistrates’ Court decisions are referred to the High Court.^[578]

The Small Claims Tribunals within the Magistrates’ Courts are available for claims which do not exceed RM 5 0 00.^[579] Its purpose is to simplify the collection of small debts in an informal atmosphere.

Penghulu’s Court^[580]

Penghulu’s Courts have very limited jurisdiction. The Court is presided over by a Penghulu appointed by the respective Ruler for a mukim (district). Its civil jurisdiction is restricted to cases where the plaintiff seeks to recover a debt or liquidated demand in money not exceeding RM 50.00.^[581] All parties to the pro­ceedings must be persons of an Asian race, speaking and understanding the Malay language.^[582] The Court’s criminal jurisdiction is restricted to offences of a minor nature and which can be adequately punished by a fine not exceed­ing RM 25.00.^[583] The accused must also be a person of an Asian race.^[584] For criminal cases, an accused could elect to be tried by a Magistrates’ Court.^[585] An appeal against a decision of a Penghulu’s Court could be made to a First Class Magistrate.^[586]

The Penghulu's Courts were established to provide an avenue for villagers to seek legal redress when roads to the major towns and cities, where most Magistrate’s Courts were located, were still poor.^[587] The need for the Penghulu’s Courts has greatly diminished as a result of the developments following World WarII.¹³⁵

Courts with specific jurisdiction

Syariah Court

The Syariah Courts have jurisdiction only in matters of Islamic law and family law of persons professing the religion of Islam.¹³⁶ They are not allowed to exercise jurisdiction over offences punishable with imprisonment for a term exceeding three years and/or any fine exceeding RM 5000, or whipping exceeding six strokes, or any combination thereof. The Syariah Court system is headed by a Chief Syariah Judge appointed by the King.¹³⁷ The system consists of three levels: the Syariah Subordinate Court, the Syariah High Court and the Syariah Appeal Court. The Syariah Court only admits Syariah lawyers, who are deemed to have sufficient knowledge of Islamic law.¹³⁸

Juvenile Court

The Juvenile Court has jurisdiction to try offenders who are below 18 years of age. It is presided over by a First Class Magistrate who decides on guilt.¹³⁹

CourtMartial

The Court Martial has jurisdiction over members of the armed forces.¹⁴⁰

Special Court

The Special Court was established in 1998 and is provided for under art 182 of the Federal Constitution. The Court is chaired by the Chief Justice of the Federal Court, the Chief Judges of the High Courts and two other persons who hold or have held office as a Judge of the Supreme Court or a High Court appointed by the Conference of Rulers.¹⁴¹ It has exclusive jurisdiction to try all offences committed in the Federation by the King or the Ruler of a state and all civil cases by or against the King or the Ruler of a state.¹⁴²

Native Court

In Sabah and Sarawak, native laws are administered by Native Courts established under their respective National Court Ordinance. Section 5 of the Ordinance provides that a Native Court has the power to administer and enforce only the native law and custom prevailing in the area of the jurisdiction of the Court, so far as it is applicable and is not repugnant to natural justice or morality or is not, in principle, in conflict with the provisions of any law in force in the state, and the

135 ibid.

136 Administration ofIslamicLaw (Federal Territories)Act 1993, ss 46-47.

137 Administration ofIslamicLaw (Federal Territories)Act, s 41(1).

138 KS Jomo and S N Wong, op. cit., p. 14.

139 Ahmad Ibrahim and Ahilemah Joned, op. cit., p. 284.

140 ibid.

141 Federal Constitution, art 182(1).

142 Federal Constitution, art 182(3). provisions of any written law which the court may be authorised to administer or enforce.^[588]

Tribunals other than courts of law

Malaysia has a number of administrative tribunals other than the Courts of Law. Some examples are the Special Commissioners for Income Tax, public service disciplinary boards, the Industrial Court and professional disciplinary bodies.^[589]

4.3 Article 121(1A) controversy: clash of secular and Syariah Court jurisdiction

Article 121(1A) was incorporated into the Federal Constitution on 10 June 1988. Itprovides that the two Federal High Courts referred toinart121(1) �shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts'. Much legal and political controversy has surrounded the proper interpretation of this provision.

It is clear that the impact of art 121(1A) depends on how expansive a reading is given to matters that fall within the jurisdiction of the Syariah Courts, and whether this jurisdiction is considered to be exclusive or concurrent with the civil High Courts.

Judicial opinion on the scope of the provision is divided. On the one hand, it has been stated that art 121(1A) is �clear and without any ambiguity'^[590] - civil courts have no jurisdiction over matters falling within the jurisdiction of the Syariah Courts. On the other hand, decisions have also noted that �there are difficulties inherent in its application'.^[591] Indeed, issues remain as to which matters fall within the exclusive jurisdiction of the Syariah Courts, and whether both civil and Syariah Courts can enjoy concurrent jurisdiction where issues implicate both civil and religious law.

The political undertones of this legal debate must be appreciated. Article 121(1A) is widely perceived to have enhanced the status of the Syariah Courts, which fuels fears among non-Muslim communities that the constitutional prin­ciple of secularity is being attacked. This fear is enhanced by the civil courts' acceptance of revisionist readings of art 3, which states that Islam is the reli­gion of the Federation. �Revisionists' usually invoke both arts 121(1A) and 3 to elevate the role of Islam in public life, despite opposition by �originalists' who maintain that �Islam' in art 3 merely has symbolic effect.^[592] This demonstrates that the interpretation of art 121(1A) has significant implications for the broader political contestation over state-religion relations.

Rationale and effect of art 121(1A)

Prior to 1988, the civil High Courts had overriding jurisdiction over the Syariah Courts under art 121(1), and had the power to review Syariah Court decisions by certiorari. This was amended by the introduction of art 121(1A). According to the Court of Appeal in Sukma Darmawan,^[593] the parliamentary debates demon­strate that the purpose of the amendment �was to prevent the High Court from exercising its powers of judicial review over decisions of a Syariah court'. The Court stated that art 121(1A) should be given a purposive interpretation. Since the legislative intent was to prevent parties who choose to adjudicate a dispute before a Syariah Court from switching to civil courts to have the matter heard de novo, the fact that a Syariah Court has jurisdiction over a particular matter should not automatically oust civil court jurisdiction.

However, this is not the trend of the current line of cases - art 121(1A) has been interpreted to mean that any person, Muslim or non-Muslim, is precluded from seeking a civil court remedy if a matter falls within the State List II, Ninth Schedule.^[594]

Judicial attitudes towards interpreting art 121(1A)

In interpreting art 121(1A), the most important question to decide is whether the matter in question falls within the jurisdiction of the Syariah Courts. The approach taken by Malaysian courts has been conflicting, but there has been a perceivable movement towards an interpretation that limits access to the civil courts.

Concurrent jurisdiction

The Syariah Courts were originally conferred exclusive jurisdictions only when the matter did not have a �dominant and immediate' connection to a civil law matter.^[595] Article 121(1A) does not take away �the jurisdiction of the High Court in all matters pertaining to Islamic law' - it is necessary to ascertain in �each and every case' whether exclusive jurisdiction is conferred.^[596] Jurisdiction is concurrent unless exclusively confined to one court. Where a Muslim commits an act which is an offence under both the Penal Code and Syariah enactment, civil courts have the jurisdiction to try the offence, as long as it does not offend the rule against double jeopardy under art 7(2).^[597] This demonstrates the initial reluctance of the civil courts to limit the scope of their own jurisdiction. The Syariah Courts only have exclusive jurisdiction over offences which do not carry a Penal Code equivalent. Where a matter falls within the exclusive jurisdiction of the Syariah Courts, art 121(1A) denies civil Courtsjurisdiction even if all parties consent.^[598]

In deciding whether exclusive jurisdiction is conferred, the court will take into account the fact that the Syariah Court lacks specific powers to grant the remedy sought.^[599] This is the �remedy prayed for' approach adopted by the Supreme Court in Isa Abdul Rahman.^[600]

However, this approach was subsequently rejected in Abdul Shaik v Hussein Ibrahim^[601] and Shaik Zolkaffily.^[602] It was considered undesirable to allow a matter to be removed from Syariah Court jurisdiction by requesting a remedy that could only be provided for by civil courts. Instead, the �remedy prayed for' approach has gradually given way to a stricter �subject-matter’jurisdiction approach.

�Subject-matter’ Categoricaljurisdiction

Under the subject-matter jurisdiction approach, Syariah Court jurisdiction may be derived either by express enactment or implication.

Initially, Syariah Courts had to be expressly conferred jurisdiction on a State List-stipulated matter before they were allowed to hear such matters. Further­more, they did not have exclusive jurisdiction where a party was non-Muslim. Therefore, inLim Chan Seng,^[603] Abdul Hamid J held that the Syariah Court lacked jurisdiction to deal with matters involving apostasy. This was because Penang state law did not contain any provision empowering the Syariah Court to deal with such matters. The judges that subscribe to such an approach are commonly referred to as �originalist’judges. Theyare opposed by revisionists, who advocate �liberal’ interpretations of the Federal Constitution, with the aim of elevating the role of Islam in the public arena.

The stricter approach above has progressively given way towards expanding the jurisdictional ambit for Syariah Courts by implication. While endorsing the subject-matter approach, the Federal Court in Soon Singh^[604] also departed from Lim Chan Seng and derived jurisdiction by necessary implication. Even though state enactments did not address conversion out of Islam, the Court held that it flowed logically from the fact that Syariah Courts hadjurisdiction over conversion into Islam, that apostasy �could be read as necessarily implied in and falling within’ Syariah Court jurisdiction.

TheFederal Court’s approachhasbeen criticised on a number of grounds. First, the Court relied on Hakim Lee^[605] in coming to its decision. This weakens the decision considerably, as HakimLee itselfhas been subjected to much criticism.^[606] Second, it is arguable that the right to change religious affiliation should be the business of civil courts, since they are charged with the protection of art 11 liberties. In the absence of an express clause on conversion out of Islam in state laws, the Syariah Courts should have no jurisdiction in this matter.^[607]

Despite these criticisms, the approach in Soon Singh has been followed in a series of subsequent cases. These cases assume that anymatter relating to Muslim apostasy falls within Syariah Court jurisdiction, even if not explicitly provided for under state law.^[608] Such an approach has led to a gradual expansion of the jurisdiction of the Syariah Courts. This, combined with the Federal Court's ruling that the Syariah Court's jurisdiction is considered exclusive once established,^[609] has caused the civil courts'jurisdiction to be severely truncated.

Conclusion: future developments

Article 121(1A) - insofar as it is viewed as enhancing the status of Syariah Courts - is part of an ongoing struggle for dominance between the �originalists' and �revisionists' in Malaysia. The case law on this provision is inconsistent and in a state of flux. After Soon Singh, the general trend has been for civil courts to decide that Syariah Courts have exclusive jurisdiction over issues of apostasy, thus avoiding adjudicating on that matter. This is so even though state legislation does not expressly grant jurisdiction to the Syariah Courts. The merits of such an approach are questionable, which has caused some public dissatisfaction among the minorities.

The last straw was the high-profile case of Moorthy,^[610] where a 36-year- old soldier and mountaineer, M Moorthy, was buried as a Muslim instead of undergoing Hindu rites, despite protests from his widow. Judge Mohamed Raus Sharif ruled that the civil High Court lacked jurisdiction to alter an ex parte judgment obtained from a Syariah Court that deemed the dead man to have converted to Islam. This decision effectively denies non-Muslims any remedy in such cases. Predictably, public outcry followed: Malaysia's non-Muslims banded together to protest against what they feared represented a steady encroachment of Islamic law into their lives. There were calls for the authorities to review the legal ambiguities in art 121(1A) by clarifying that the High Court had the jurisdiction to determine religious conversion cases. The debate that resulted highlighted the �long standing uneasy relationship that exists between the civil and Syariah Court systems and the potential for an explosive encounter in a multi-ethnic and multi-religious society'.^[611] Itremains to be seen where the final equilibrium will lie.

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