15 fundamental 13 islam 13 (11)

Article 13 (1) provides that ‘no person shall be deprived of property save in accordance with law’.

Article 13 (2) requires that ‘no law shall provide for the compulsory acquisition or use of property without adequate compensation’.

The constitutional impact of these clauses depends on the meaning and scope of the term ‘person’, ‘property’, ‘in accordance with law’, ‘acquisition’, ‘use’ & ‘adequate compensation’.

Person: Includes all persons, whether natural or artificial including companies, partnership, businesses, club, societies, political, parties, NGOs, universities & other entities.

Property: Covers all forms (with some exceptions)i. corporal – material things like lands & housesii. incorporeal rights – right of way & right to redeem

mortgage propertyiii.movable – chattels –door & electric fan, chairs, tv. iv.immovable – land & buildingsv. tangible – money, furniture & land.vi.intangible – copyright, patent & trade mark.

Property: The interpretation of property includesi. real & personal property, interests & valuable rights

like possessions & enjoyment : Adong bin Kuwau [1997]

ii. ownership of ancestral land (partial recognition): Section 65 of Sabah Land Ordinance 1996 & Naung Felix [1999]

iii.customary land: National Land Code (Penang & Malacca Titles) 1963Property: court rejected that ‘goodwill’: Selangor Pilot [1975] & lease: Stations Hotel [1977] as within the meaning of property.

Property: Orang Asli reserves?i. Aboriginal People’s Act 1954 failed to give a

complete ownership of ancestral land to Orang Asli.ii. In Adong bin Kuwau [1997] a group of aborigines

were denied their source of livelihood as a result of the clearing of the jungle in which they have been living. The clearing was done for construction of a dam by the state authority. The court took a wide interpretation of the proprietary rights under art 13 & held that

a. property includes both real & personal propertyb. property may signify either the subject matter itself/ interests valuable

rights attached to it &

c. property may include certain rights such as possession & enjoyment.

Property: Orang Asli reserves?i. Aboriginal People’s Act 1954 failed to give a

complete ownership of ancestral land to Orang Asli.

ii. Adong bin Kuwau [1997] The court also distinguished between land and what is above the land. The plaintiff had rights to live off the land but no right to the land itself. The building of the dam was held to have denied the aborigines their rights to enjoy the forest produce & the state authority was in breach of the provision under art 13.

Property: Orang Asli reserves?iii. However in Sagong Tasi [2002] the learned judge

regarded the Orang Asli of Kampung Bukit Tampoi, Dengkil as customary owners of their traditional territory, have native titles, have a proprietary interest & have the right to use & derive profit from the land. Their rights were protected by the Constitution, Art 13(1). In this case, 7 Temuan Orang Asli sued the Federal & Selangor State Government, the UEM company & the M’sian Highway Authority for loss of Orang Asli land & dwellings when their land was acquired to build the KL-Nilai Highway. The court held that the government had a fiduciary duty towards the Orang Asli and this was breached when the acquisition of their land was undertaken without adequate notice & without compensation under the Land Acquisition Act.

Property: Squatters?i. Under the land laws, a squatter on a public / private

land is a trespasser who is liable to criminal prosecution & civil suit.

ii. If the squatter plants crops on the land & the crops are ripe for plucking, is the squatter entitled to any compensation?

iii. Islamic concept of ihya al-mawat permits a squatter, who revives dead public land, to receive an equitable interest.

iv. In Sidek Haji Muhammad [1982] the appellants, all squatters had opened up large tracks of jungle to grow crops. Promises were made by the relevant authority. Some squatters received the land & some were treated as squatters. Art 8 was not argued. Unequal treatment under the law.

In accordance with law: The sanctity of property is protected against executive arbitrariness:

i. Failure of executive to serve the statutory notice of intention to acquire to the occupier & resulted in occupier failure to appear at the hearing for the award was taken into consideration by the court: Lai Tai [1960]

ii. Executive acts causing deprivation of property may be challenged on the ground that they were not ‘in accordance with law’: S Kulasingam [1982] & Philip Hoalin [1974]

iii.The protection of Art 13(1) avails only against the executive & not against the legislature: Philip Haolin

In accordance with law: Law refers to the will of legislature. Law is lex (enacted law) & not jus (justice) or recht (right). A law within the jurisdiction is valid even if it is unreasonable.In S Kulasingam [1982] it was held that under the Land Acquisition Act 1960 there is no right to a pre-acquisition hearing despite the demands of the rules of natural justice.In exercise of its legal powers Parliament has enacted several laws to destroy, deprive, acquire, require/ regulate private property: Dangerous Drugs (Forfeiture of Property) Act 1988, Income Tax Act 1967, Land Acquisition Act 1960 & Danaharta Nasional Berhad Act 1998.

Protection Against Deprivation of Property: Subject to regulation & deprivation ‘in accordance to law’ in many forms –compulsory acquisition, requisition, regulation, destruction, confiscation, imposition of taxes & fines, nationalisation of businesses, police power to enter & search premises & seize goods.Article 13(1) : The protection under art 13(1) are:

i. Protection for citizens & non-citizens, natural & artificial personsii. Whether the action amounted to ‘deprivation’ is judicially

examinable.iii. Whether the interest involved comes within the juristic concept of

‘property’ is open to discussion.iv. Whether the law involved was valid or not is always reviewable as

the Constitution is supreme.v. Whatever the manner of deprivation of property, the executive

must base its actions on the law – all safeguards available to property owners must be followed.

Protection Against Deprivation of Property: Adequate compensation : Art 13(2) & Land Acquisition Act 1960 provide detailed procedures for assessment of compensation.The court have adopted the test of ‘fair market value’ which refers to the price that an owner willing & not obliged to sell might reasonably expect to obtain from a willing purchaser as provided under the 1st Schedule of the Land Acquisition Act.In Hock Lim Estate [1980] the safest guide to what fair compensation should be is the evidence of recent sales of similar lands in the vicinity.

Protection Against Deprivation of Property: Adequate compensation : Adequate compensation means fair compensation?In Adong bin Kuwau [1997] the court noted that the plaintiff have suffered:

i. Deprivation of heritage landii. Deprivation of freedom of inhabitation or movement

under Article 9(2) of the FCiii.Deprivation of produce of the forestiv.Deprivation of future living for themselves & their

immediate family, andv. Deprivation of future living for their descendants

In this view the court held that ‘…in awarding the compensation, I have in mind that the sum would not only reflect a just figure, but also a sum which would enable the plaintiffs to put into good use & regenerate…’. RM 26.5 million was ordered as compensation.

Protection Against Deprivation of Property: Time limits : delay in giving compensation. Delay did not vitiate (reduce the effect) the compulsory order: Tan Book Bak [1983]. Compensation hearing? ‘all convenient speed’. A seven-year delay was unreasonable.Public purpose: courts are not prevented from examining whether the acquiring authority has misconstrued its statutory powers/ whether bad faith has been established. Post-acquisition hearing: Under the Land Acquisition Act there is a right to a post-acquisition hearing in the quantum of compensation. An interested party is to make reference to the High Court within 6 months of the date of the award.

ISLAMIC STATE ?

Art 3(1) of the FC: Islam is the religion of the federation.

Schedule 9, List II, Paragraph 1:State Legislatures are permitted to legislate for the application of Islamic laws to persons professing the religion of Islam in a variety of areas including personal & family law, succession, marriage, adoption, gifts, trusts, zakat & mosques.

State legislatures are authorised to create & punish offences by Muslim via Syariah courts. Syariah Courts are established by State law & are independent of civil courts: Art 121 (1A).

ISLAMIC STATE DEBATE

The United Malay National Organisation (UMNO) claimed that Malaysia is already an Islamic State & no constitutional amendments are needed.

The Parti Islam SeMalaysia (PAS) argues that the Malaysia’s Constitution provides a secular foundation – part of their argument is that the criminal offences are not tried & sentenced according to Syariah laws.

The problem is compounded by the fact that there is no ideal or prototype secular or Islamic State that one could hold up as a shining model or paradigm of one or the other.

FEDERAL CONSTITUTION’S SECULAR FEATURES

Secular history: Historical evidence in the Reid Commission papers that the country was meant to be secular & the intention in making Islam the official religion of the Federation was primarily for ceremonial purposes. Before, the legal system of the Malays, shows a fascinating actions & reaction between Hindu law, Muslim law & Malay indigenous tradition.

Case law: Che Omar Che Soh [1988]: Islam is not the basic law of the land & Art 3 did not limit the power of Parliament to legislate on Islamic matters. It applies only to Muslims & only in areas outlined in Item I of List II of the Ninth Schedule.


Adat: One must also note the very significant influence of Malay adat (custom) on Malay-Muslim personal laws. In some states like Negeri 9, adat displaces Agama in some areas of family law. An example on the matter of inheritance which allows larger portion of the property given to the women.

Article 4(1) & constitutional supremacy: Under Art 4(1) the Constitution & not the syariah is the supreme law of the federation. Any law passed after Merdeka Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.


Article 162(6): Under Art 162(6) & (7) any pre-Merdeka law which is inconsistent with the Constitution, may be amended, adapted or repealed by the courts to make in fall in line with the Constitution.

Definition of law: Art 160(2) the Constitution, which defines ‘law’, does not mention the syariah as part of the definition of law. The term ‘law’ includes written law, common law, & custom/usage.

Article 3(4): Clearly stated in art 3(4) that nothing in this Article derogates from any provision of the Constitution. Any provisions of law cannot be invalidated on the sole ground that it is unIslamic.


Higher status of secular authorities: Syariah authorities are appointed by State Governments & can be dismissed by them. Except for those areas in which the syariah is allowed to operate, the law of the land is enacted, expounded & administered by secular officials.

Senior federal posts: Islam is not a prerequisite for citizenship or for occupying the post of Prime Ministers. Members of the cabinet, legislature, judiciary, public services & the Commission under the Constitution are not required to be of the Muslim faith.

THEOCRACY ~ Definition

a. Literally means rule by God.

b. In political science the term has come to mean either:

i. the temporal ruler is subjected to the final direction of the theological head because the spiritual power is deemed to be higher than the temporal & the temporal is judged by the spiritual. Iran has such a constitutional rule.

ii. The law of God is the supreme law of the land. The divine law is expounded & administered by pious men as God’s agents on earth. Saudi Arabia & the Vatican are theocracies of this kind.

ISLAMIC FEATURES IN THE CONSTITUTION

The significant implications of the Art 3(1) Islam is the religion of federation are:

Secularism rejected: The implication is that M’sia is not a full-fledged secular State. Government support for the religion of Islam is permitted.

Education: Islamic education & way of life can be promoted by the State for the uplifting of Muslims. Art 12(2) provides that it shall be lawful for the Federation/ a State to establish/ maintain Islamic institutions & provide instruction in the religion of Islam to Muslims.


Religious institutions: Taxpayers’ money can be utilised to promote Islamic institutions & to build mosques & other Islamic places of worship & to keep them under the control of State authorities.

Syariah Courts & Article 121(1A) : After 1988, the Syariah Courts have equal constitutional status with the civil courts.

Art 121 (1A) provides that the High Courts ‘shall have no jurisdiction in respect of any matter within jurisdiction of the Syariah courts’.


Syariah Courts & Article 121(1A) : However, the introduction of Art 121(1A) did not clarify a number of things. They are:

a.Power to determine disputes: Who has the power to determine whether a matter is within or outside the jurisdiction of the Syariah courts? If there is a difference of opinion between the civil & Syariah courts whose decision will prevail?


Syariah Courts & Article 121 (1A) :

a.Power to determine disputes:

i. In Tongiah Jumali [2004] a Muslim at birth, had converted to Christianity & married a non-Muslim. The issue was whether her conversion out of Islam was valid & who should determine that issue? The Johor State Enactment had provisions regarding conversion into Islam but was silent on the issue of conversion out of Islam. The High Court, adopting the ‘implied power approach’, held that the jurisdiction of the Syariah court to deal with conversions out of Islam although not expressly provided in the State Enactment may be read into them by implication derived from the provisions concerning into Islam.



a.Power to determine disputes:

ii. In Norlela Mohamad Habibullah [2004] the parties had contracted a Muslim marriage abroad & divorced under civil law abroad. Neither the marriage not the divorce was registered under the Muslim laws of Selangor. When the issue of custody of the infant child came up, the plaintiff obtained a civil High Court order. The respondent challenged the right of the High Court to issue such order in the light of Art 121 (1A). It was held that the Selangor Islamic Family Law Enactment did not apply to the unregistered marriage & the unregistered divorce. Syariah court has no jurisdiction unlike civil courts that are courts of general jurisdiction.


b. One party is a non-Muslim: Where a case should go if one party is a Muslim & the other a non-Muslim?

In Saravanan a/l Thangathoray [2007] the couple was married under civil law in 2001 & had 2 infant children. In 2006 the husband converted himself & his infant son to Islam without the wife’s knowledge & consent & ex parte injunction to restrain the husband from converting either child & commencing or continuing with any proceeding in any Syariah Court with regard to the marriage or the children. It was held she had no jurisdiction to grant an injunction against a court not subordinate to the High Court. On appeal to the Court of Appeal, the majority expressed inability to grant the injunction sought because the matter was within the jurisdiction of the Syariah Court. The Federal Court held that ‘a non-Muslim marriage did not automatically dissolve upon one of the party’s conversion to Islam’.



c. Mixed issues : Where the case should go to if the issue is mixed & involves elements of both Syariah & civil law? In Islamic banking cases vigorous arguments have been submitted that the High Court should not exercise jurisdiction.

d. Fundamental rights/federal-state power: What if a Syariah-related law or decision involves a grave constitutional law question about fundamental rights / federal-state division of power?


d. Fundamental rights/federal-state power:

In Priyathaseny [2003] The plaintiff was born a Malay & a Muslim. She renounced Islam, adopted Hinduism, changed her name, married an Indian. She gave birth to 2 children. She was arrested & charged for 2 offences –i. insulting Islam by her act of conversion & ii. of cohabitation outside of lawful Muslim wedlock with a non-Muslim. The High Court held that the core issue was whether the plaintiff was still a Muslim despite her alleged conversion & this issue was for the Syariah Courts. The High Court should not abdicate its responsibility to interpret the FC.



Since 1988, the civil courts have generally shown great reluctance & restraint in any matter where there is the slightest whiff of an Islamic religious issue. Barring some exceptions they have generally hidden behind Art 121 (1A) to give way to the Syariah courts & to adroitly evade or avoid constitutional issues.

The conflict can be resolved either through judicial interpretation or through legislative guidance. The civil courts have significantly failed in this area. A legislative initiative is, therefore, necessary to clarify issues arising under Art 121 (1A).



e. Civil remedies: Sometimes the remedy being prayed for is unavailable in the Syariah courts.

In Azizah bte Shaik Ismail [2004] there was a custody dispute between the natural mother & her sister over an infant child. The natural mother applied to the civil High Court for the writ of habeas corpus. The Federal Court, in following the subject matter approach, refused habeas corpus. The subject matter was in the exclusive jurisdiction of the Syariah Court even if the remedy was not.

15 fundamental 13 islam 13 (11)

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