Upholding Malaysian constitutional law from going down the slippery slope
KUALA LUMPUR, MALAYSIA - Media OutReach - 29 November 2021 - Malaysian law firm Surenda Ananth Advocates & Solicitors issues a statement today on the constitutional law impact on Malaysia and Malaysians following the recent ban of 4D lottery shops in the northern state of Kedah.
The Chief Minister of Kedah, Datuk Seri Muhammad Sanusi Md Nor justified his actions for the state-wide ban and was reported to have said, "as a Muslim and head of state, he has the obligation to adhere to God's instruction and he does not want to be questioned in the afterlife".
Malaysian lawyer Surendra Ananth says that many may not be aware, but it was this concern that gave rise to the first written compilation of Muslim law offences in Malaya (then, the Federated States of Malaya). On 10 October 1898 in a Pahang State Council meeting, the then Sultan of Pahang urged the British Governor to assume the responsibility of drafting a Muslim law enactment.
The Minutes of the Proceedings of the State Council record: "His Highness says that he is growing old, and that the thought of his responsibility in this matter fills him with fear in view of the fact that he will shortly be called upon to render an account to God for all actions and of his neglect to fulfil his law. His Highness says that he feels sure that if the Government realises his position in the matter, and the immense importance which this question must have in his eyes, it will find a means of punishing such crimes as he has named, and will so relieve him of the weight of a moral responsibility which he finds himself quite unable to bear".
Despite criticisms, in 1904, an enactment drafted by the British was passed in all the Federated States. It was generally called the Muhammadan Laws Enactment. There were 9 offences included and it only applied where all parties were Muslims. The number of Muslim offences increased over the years. The power of the States to make such offences was eventually codified in the Federal Constitution.
On 1 November, 2021, the Chief Minister of Kedah, Datuk Seri Muhammad Sanusi Md Nor was conferred the "Dato' Sri Paduka Mahkota Kedah" (SPMK) award, which carries the title "Datuk Seri", by the Kedah Sultan Sallehuddin Sultan Badlishah commemorating his 79th birthday.
On 8 November, the High Court of Malaysia ordered the newly minted Datuk Seri to pay RM50,000 to a member of parliament (MP) over a defamatory video posted on Facebook two years ago of protestors outside a Sports Toto outlet holding a banner of the MP's name.
On November 17, the same Datuk Seri announced during a state assembly that the Kedah State Government had decided to ban all 4D lottery shops in the state. This was to be done through the local councils by rejecting any license renewal applications.
Surendra reiterates that this ban is not issued under any Islamic law. Islamic law, which is made by States, can only apply to persons professing the religion of Islam and is limited to personal law matters. The ban is implemented indirectly by directing the local councils in the state of Kedah to refuse license renewal applications by entities running lotteries.
"This is illegal as lotteries fall under the Federal List in the Ninth Schedule of the Federal Constitution, which means Parliament and the Federal Government regulate lotteries and gambling. Malaysia's Lotteries Act 1952 declares lotteries unlawful unless licensed by the Minister of Finance. Local councils can regulate such premises on limited matters such as operational hours, safety or place of business but a State cannot impose an outright ban on lotteries and gambling," Surendra affirms.
"Second, and more importantly, a State authority when making a decision under a secular law applying to all persons, cannot make such decision on the basis of Islam alone. The government is a government of all people and not just Muslims," he said.
On Islamic law offences, a State cannot use such laws to prohibit gambling or lotteries. The number of Islamic law offences in each state have significantly increased. As an example, in the state of Selangor, there are over 30 Islamic offences. Most of these provisions are unconstitutional. Although the state can create Islamic offences on matters against the precepts of Islam, there is an important restriction imposed by the Federal Constitution. Even if a matter is prohibited in Islam, it cannot be made an offence if the same matters fall under the Federal List.
"Matters such as lotteries, criminal law, public order, health and intoxicating liquors are all in the Federal List. Most of the offences introduced recently in the Kelantan Syariah Criminal Code such as destroying houses of worship, tattooing, undergoing plastic surgery, making false claims etcetera, are unconstitutional. They all fall under the Federal List," said Surendra.
Most if not all of the Hudud offences introduced in the Kelantan Syariah Criminal Code in 2015 are unconstitutional. They include theft, robbery, adultery, sodomy, false accusation of adultery, consumption of alcohol, homicide, causing bodily injury etcetera. All these matters are under the Federal List and in fact have been made offences under federal law.
Putting aside the issue of legislative power, Surendra Ananth added that there are also Islamic laws that violate fundamental rights guaranteed in the Federal Constitution. He cites the case concerning Nur Sajat as a good example. In or around February 2021, an arrest warrant was issued for the Malaysian cosmetics entrepreneur who earlier that year, was charged for cross-dressing under the Selangor Syariah Criminal Offences (Selangor) Enactment 1995. This provision clearly violates one's right to dignity, self-autonomy and freedom of expression. Nur Sajat has been granted asylum in Australia. It has been reported that Malaysia is looking at an extradition request to Australia. This will most likely be rejected if it is sought on the basis of the charge in the Syariah Court.
"The States' power to make Islamic offences is limited only to personal religious offences. This is the constitutional framework. There is nothing wrong if one disagrees with this. However, what is wrong is to misrepresent and misapply the Federal Constitution.
It is apparent that certain state governments are expanding the role of Islam in a manner not contemplated under the Federal Constitution. Although some might disagree with the vice, condoning or supporting such bans is a slippery slope we should not go down," concluded Surendra Ananth, a Malaysian lawyer who is passionate about creating discourse surrounding Civil Litigation, Commercial Law, Constitutional Law, Administrative Law and Alternative Dispute Resolution in Malaysia.
Most constitutional law cases involve challenges against the government. There are not many lawyers who handle such cases. Surendra hopes that by speaking up, more lawyers will take up such challenges to ensure that the rights of the individual are protected. He was admitted to practice as an Advocate and Solicitor of the High Court of Malaya in July 2015. He appears in various public interest and civil litigation cases in all levels of the court. He is also a member of the Malaysian Bar Council.
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