The right guaranteed by Article 11 grants every person the freedom to choose, affirm, practise and profess the religion of his/her choice.
The Federal Constitution is, and must remain in law, supreme. In the event of any inconsistency or conflict between the provisions of State Enactments and of the Federal Constitution, the latter must prevail.
The implied jurisdiction approach runs contrary to the legal position that State law must confer on the Syariah Court express jurisdiction to deal with any matters stated in the State List. The majority decision has implied such jurisdiction in the absence of statutory provisions to that effect, which in any event must accord with the Federal Constitution in order to be valid.
We support the minority judgment of Justice Dato’ Richard Malanjum HMP, who stated that,
“.... jurisdiction must be express and not implied. The doctrine of implied powers must be limited to those matters that are necessary for the performance of a legal grant.
And in the matters of fundamental rights there must be as far as possible be express authorization for curtailment or violation of fundamental freedoms. No court or authority should be easily allowed to have implied powers to curtail rights constitutionally granted.” (emphasis ours)
The Judgment further noted that it was unreasonable “to expect the Appellant to apply for a certificate of apostasy when to do so would likely expose her to a range of offences under the Islamic law”.
It is important that this minority Judgment be given careful consideration.
We are mindful that issues relating to religion will inevitably draw emotive responses.
Finally, we would commend the approach of the late Tun Mohamed Suffian in such cases where he said,
“In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgment with our name deleted could with confidence identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot.”Ambiga Sreenevasan
- (The Constitution of Malaysia - Further Perspectives and Developments).
31 May 2007