Hornbill Unleashed

April 17, 2014

The IGP must resign

Filed under: Corruption,Politics — Hornbill Unleashed @ 8:00 AM
Tags: , ,


Maybe I am confused, but is this not the inspector-general of police (IGP); our chief criminal law officer of the federation speaking about lack of authority to resolve the issue of the kidnap of his son by a Muslim convert? Is not our IGP also the chief police officer for execution of civil and criminal law in this country? Since when did Malay-state-enacted syariah law and all related enactments come under the executionary jurisdiction of the police?

I am very serious, and can anyone help with an answer, including the Bar Council or any professor of the constitution.
In similar reverse of this logic, then, is the Agong (our king), also then the chief religious matters officer of the Federation of Malaysia? Where does it say this in the federal constitution about either such jurisdictional oversight or moral responsibility  or authority? Maybe I am simply too confused but below is my converse argument for my questions.

The constitution of the federation says of itself that it is the supreme law of the federation. It also states that any law that violates this truth is null and void. If fact let me go further and quote none other than Salleh Abas in the Che Omar bin Che Soh versus Public Prosecutor case;

In this appeal, an additional ground of appeal sought to show that in a mandatory death sentence for the offence of drug trafficking and for the offence of the firearm [increased penalties] act is against the injunctions of Islam and therefore unconstitutional and void.

Held; [1] that the term ‘Islam’ or ‘Islamic religion’ in Article 3 of the federal constitution in the context means only such acts as relate to rituals and ceremonies;

[2] during the British colonial period, through their system of indirect rule and establishment of secular institutions Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. It is in this sense of dichotomy that the framers of the constitution understood the meaning of the word ‘Islam’ in the context of Article 3;

[3] it should thus appear that not much reliance can be placed on the wording of Article 3 to sustain the submission that punishment of death for the offence of drug trafficking or any other offence will be void as being unconstitutional.

Confused/overlapping jurisdictions

In any secular constitution, the defining law of the land is what is borrowed from ‘the common and civil law system’ developed and adjudged vide their case-laws. These laws are simply divided into either civil law or criminal law and the difference between these laws are listed below for ease of comprehension based in the New Zealand system of laws.

In the Malaysian case of our public legal system, we have one additional category of laws, as now, many other new territories of the Commonwealth are also learning and including.

These are syariah or Muslim law enactments of the states of the federation of Malaya. In the constitution of the federation, since our original constitution before the formation of Malaysia, these provisions are in schedule ll of the constitution, which apply to the nine states of the federation supervised by the nine traditional heads of states or sultans.

It is however not clear to me that these religious matters are also matters which have equal application to the governors of the two Borneo states and the two Straits Settlements. They have no sultans but governors, and usually these individuals are and closely linked to a federal-government mediated appointment.

Consequently also, in a case Latifah bte Mat Zin versus Rosmawati bte Sharibun & Anor, which was heard by FCJ Abdul Hamid Mohamed and others, we find the following clarifications;

‘[28] We shall now look at List II – State List:

List II – State List

1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution organisation and procedure of Syariah courts which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.

[29] The first point that must be reemphasised is that, like the Federal List, it is a legislative list and nothing more. It contains matters that the legislature of a state may make laws for their respective states. [The Federal Territories are an exception]. So, to give an example, when it talks about ‘the constitution, organisation and procedure of Syariah courts’, what it means is that the legislature of a state may make law to set up or constitute the syariah courts in the state. Until such law is made such courts do not exist. The position is different from the case of the civil High Courts, the Court of Appeal and the Federal Court. In the case of those civil courts, there is a whole part in the constitution (Part IX) with the title ‘the Judiciary’.

[30] Article 121(1) begins with the words ‘There shall be two High Courts of co-ordinate jurisdiction and status,’ namely the High Court in Malaya and the High Court in Sabah and Sarawak. (Emphasis added.)

[31] Article 121(1B) begins with the words ‘There shall be a court which shall be known as the Mahkamah Rayuan (Court of Appeal) …’ (Emphasis added.)

[32] Article 121 (2) begins with the words ‘There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) ….’ (Emphasis added.)

[33] So, the civil High Courts, the Court of Appeal and the Federal Court are established by the Constitution itself. But, that is not the case with the syariah courts. A syariah court in a state is established or comes into being only when the legislature of the state makes law to establish it, pursuant to the powers given to it by item 1 of the State List. In fact, the position of the syariah courts, in this respect, is similar to the Session Courts and the Magistrates’ Courts. In respect of the last two mentioned courts, which the constitution call ‘inferior courts’, Article 121(1) merely says, omitting the irrelevant parts:

121(1) There shall be … such inferior courts as may be provided by federal law… (source: MLJ 5, 2007, pp 113-114)

Having risen to the rank of chief judge and with a litany of cases and decisions wherein he made clear decisions and distinctions between Civil law, Criminal law, and Syariah law, one cannot say that Hamid Mohamed is either ignorant or lacks knowledge of the difference between these hierarchy of concepts and authority for clarity of jurisdiction. His clarity is in stark contrast to that of the IGP “whose confusion affects every chief police officer”.

At last review neither is ‘syariah enforcement’ listed as part and parcel of duties and responsibilities of the Police Act 1967.

My next column will seek to explain this concept of the hierarchy of concepts and ideas.


1 Comment »

  1. We have all the thick-skinned, shameless, racist, warp minded, corrupt and self-induced ultras as leaders, what is there to expect. Selective prosecution, selective amnesia, racism, bigotry and misquoted views are the games they play. All these are the seeds of Mamakutty, the EVIL CORRUPT!

    Comment by Sharpshooter — April 17, 2014 @ 8:31 PM | Reply

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