For the above offences it provides for penalties ranging from death, death by stoning, amputation of limbs, whipping up to 100 lashes, imprisonment for life, imprisonment “for such term as in the opinion of the (Assyria) Court would lead the offenders to repentance” and forfeiture of property to Baptismal. Under section 41(1) of the Enactment it provides that “each witness shall be an adult male Muslim who is jail baling, and shall be a person of just.
Under section 56(1) if provides that subject to subsection (2), this Enactment shall apply to every Muslim…. “. But subsection (2) states that “nothing in this Enactment shall preclude a nor-I-Muslim from electing that this Enactment apply to him… “. The provisions of the Enactment are severely criticized by many Malaysian Nags. Your expert opinion is sought in relation to the following issues: a) The Bar Council of Malaysia is of the view that the inclusion of criminal offences in the Enactment violates the federal-state division of powers. Marks) b) A number of unman rights groups are of the opinion that punishment of apostates violates many provisions of the chapter on fundamental liberties and of international law on freedom of religion. (10 marks) c) The Bar Council is also of the view that the punishment prescribe are ultra virus the powers of the State Assembly and are also unconstitutional. (5 marks) d) Women’s group feel that section 41 (1) is a violation of the right to equality. 3 marks) e) Non-Muslim groups in Skeletal are of the view that section 56(1) would amount to an unconstitutional imposition of the Assyria on non-Muslim. (2 arks) f) All groups concerned wish to know legal remedy, if any, and the venue at which they may be able to challenge the Enactment. (5 marks) Advice these groups on the constitutional issued raised in each of the paragraphs (a) to (f) above. Page 1 of 14 ANSWER To address all the issues raised in Para (a) to (f), lets first examine the related provisions in the Federal Constitution.
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This provision is important in understanding the matter on hand. These provisions in the Federal Constitution must be read together simultaneously and not individually as it correlates with each other. Article 5 – Liberty of the person (1) No person shall be deprived of his life or personal liberty save in accordance with law. (2) (Not related) (3) (Not related) (4) (Not related) (5) (Not related) Article 5 (1), provides that no person shall be robbed of his or her personal freedom unless such freedom is restricted by the law.
Article 8 – Equality (1) All persons are equal before the law and entitled to the equal protection of the law. (2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place f birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. 3) There shall be no discrimination in favor of any person on the ground that he is a subject of the Ruler of any State. (4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the restriction of the authority. 5) This Article does not invalidate or prohibit: (a) any provision regulating personal law; (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion; (c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service; d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election; page 2 of 14 (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Marked Day; (f) any provision restricting enlistment in the Malay Regiment to Malay. Article 8, gives provision for equality for each person with exception or not to invalidate any law passed as listed in clause 5(a) to 5(f). Article 11 – Freedom of religion 1) Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it. (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own. 3) Every religious group has the right: (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law. (4) State law and in respect of the Federal Territories of Koala Lump, Labial and Pituitary, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam. (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality. Article 11, states that every person has the right to practice his or her religion and to proliferate it to other with exception to person professing the religion of Islam.
It also provides that every religion groups with certain rights as provided in clause 3(a) to 3(c). Article 12 – Rights in respect of education (1) (Not related) 3) No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a religion other than his own. (4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian. Article 12 (3) and 12 (4), provides that no person shall be compel to undertake any instruction relating to religious matters other than his own and that an infant religion shall be dictate by his parent or guardian.
Article 73 – Extent of federal and State Law In exercising the legislative powers conferred on it by this Constitution: (a) Parliament may make laws for the whole or any part of the Federation and laws having effect outside as well as within the Federation Page 3 of 14 (b) the Legislature of a State may make laws for the whole or any part of that State. Article 73, clearly provides the separation of power between the Federal Government and the State Government in the Federation to make laws. The limit of the law made by the Parliament covers the whole Federation, whereas the limit of the law made by the State Legislative only covers within the individual state borders.
Article 74 – Subject matter of federal and State laws 1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule). (2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List. (3) The power to make laws conferred by this Article is exercisable subject to any intuitions or restrictions imposed with respect to any particular matter by this Constitution. 4) Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter. Article 74, further explain the breakdown of laws that can be made by the Parliament and each individual State Legislative in the Federation, with reference to five (5) different list in Schedule Ninth in the Federal Constitution. The list covers Federal List; State List; Supplement State List for Saba and Karakas; Concurrent List between the Federal and States; and Supplement Concurrent List between the Federal and Saba and Karakas.
The Article also provides that any expression either specific or general describe in the Ninth Schedule, the generality of the expression shall not construe to limit the general provision by the specific provision in the list. Among the list provided in the Federal List in Ninth Schedule are: 4. Civil and criminal law and procedure and the administration of justice, including: (a) constitution and organization of all courts other than Assyria Courts; (b) jurisdiction and powers of all such courts; c) remuneration and other privileges of the judges and officers presiding over such courts; (d) persons entitled to practice before such courts; (e) subject to paragraph (ii), the following: i. Entrant; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and Page 4 of 14 hyphenation, except land; bona vacant; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile away; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence; the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate; (f) official secrets; corrupt practices; (g) use or exhibition of coats of arms, armorial bearings, flags, emblems, informs, orders and decorations other than those of a State; (h) creation of offences in respect of any of the matters included in the Federal List or dealt with by federal law; (i) indemnity in respect of any of the matters in the Federal List or dealt with by federal law; (j) admiralty jurisdiction; (k) ascertainment of Islamic law and other personal laws for purposes of federal law; and (l) betting and lotteries. Among the list provided in the State List in the Ninth Schedule are: 1. Except with respect to the Federal Territories of Koala Lump, Labial and Pituitary,
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; Wakes 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; Katz, Fitter and Baptismal or animal Islamic religious revenue; mosques or any Islamic public place 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, organization and procedure of Assyria courts, which shall have jurisdiction only over persons professing the religion of Islam 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 Page 5 of 14 elision of Islam; the determination of matters of Islamic law and doctrine and Malay custom. Article 75 – Inconsistencies between federal and State laws If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void. Article 75, provides a remedy should there be any inconsistency in the State Laws with the Federal Laws.
If there is any, then the Federal Laws shall prevail and the State Laws will be void to the degree of its inconsistency. Article 76 – Power of Parliament to legislate for States in certain cases (1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say: (a) for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or (b) for the purpose of promoting uniformity of the laws of two or more States; or (c) if so requested by the Legislative Assembly of any State. 2) No law shall be made in pursuance of paragraph (a) of Clause (1 ) with respect to any matters of Islamic law or the custom of the Malay or to any matters of native law or custom in the States of Saba and Karakas and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government of any State concerned has been consulted. (3) Subject to Clause (4), a law made in pursuance of paragraph (b) or paragraph (c) of Clause (1) shall not come into operation in any State until it has been adopted by a law made by the Legislature of that State, and shall then be deemed to be a State law and not a federal law, and may accordingly be amended or repealed by a law made by that Legislature. ) Parliament may, for the purpose only of ensuring uniformity of law and policy, make laws with respect to land tenure, the relations of landlord and tenant, registration of titles and deeds relating to land, transfer of land, mortgages, leases and charges in respect of land, easements and other rights and interests in land, compulsory acquisition of land, rating and valuation of land, and local government; and paragraph (b) of Clause (1) and Clause (3) shall not apply to any law relating to any such matter. Article 76, provides a further separation of powers between the Federal Government and the State Government to make away. The Article specifically provides power for Parliament to make law to control the State Legislative in matters prescribe in clause 1 (a), I(b) and I(c).
It also provides a limit to Parliament to make law in matters prescribe in clause 2. Aside from that, it also specifically provides that any law made by Parliament in pursuant of clause 1, shall not be effective until it is incorporated by the State Legislative. Page 6 of 14 Article AAA – Power of Parliament to extend legislative powers of States (1) It is hereby declared that the power of Parliament to make laws with respect o a matter enumerated in the Federal List includes power to authorize the Legislatures of the States or any of them, subject to such conditions or restrictions (if any) as Parliament may impose, to make laws with respect to the whole or any part of that matter. 2) Notwithstanding Article 75, a State law made under authority conferred by Act of Parliament as mentioned in Clause (1) may, if and to the extent that the Act so provides, amend or repeal (as regards the State in question) any federal law passed before that Act. (3) Any matter with respect to which the Legislature of a State is for the time Ewing authorized by Act of Parliament to make laws shall for purposes of Articles 79, 80 and 82 be treated as regards the State in question as if it were a matter enumerated in the Concurrent List. Article AAA, provides additional power for Parliament to make laws which is not provided in Article 76. It specifically enable Parliament to make laws pertaining to matters in the Federal List including to empower the State Legislative to make laws pertaining to the items mention in the Federal List as a whole or part of it.
The Article also provides additional items to be taken as part of the Concurrent List in the Ninth Schedule if any laws make by the State Legislative in pursuant of Article 79, 80 and 82 in the Federal Constitution. Article 77 Residual power of legislation The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament has power to make laws. Article 77, gave power to the State Legislature to make laws for items not mentioned in the list in the Ninth Schedule so as long it does not encroach the power of Parliament.
Article 79 – Exercise of concurrent legislative powers 1) Where it appears to the presiding officer of either House of Parliament or of the Legislative Assembly of any State that a Bill or an amendment to a Bill proposes a change in the law relating to any of the matters enumerated in the Concurrent List, or to any of the matters enumerated in the State List with respect to which the Federation is exercising functions in accordance with Article 94, he shall certify the Bill or amendment for the purposes of this Article. (2) A Bill or amendment certified under this Article shall not be proceeded with until four weeks have elapsed since its publication, unless the presiding officer, Ewing satisfied that the State Governments, or as the case may be, the Federal Government, have been consulted, allows it to be proceeded with on the ground of urgency. Age 7 of 14 Article 79, provides that any laws pass by either Parliament or State Legislative in pursuant of this Article and list set in the Concurrent List in the Ninth Schedule, it must be specifically mentioned in the laws passed. Article 81 – Obligations of States towards Federation The executive authority of every State shall be so exercised: (a) as to ensure compliance with any federal law applying to that State; and (b) as not to impede r prejudice the exercise of the executive authority of the Federation. Article 81 , further sets out the duty of the State Executive to ensure that the laws of the Federation is comply with and also for the State Executive not to encroach the authority of the Federal Executive.
Article 121 -Judicial power of the Federation (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely: (a) one in the States of Malay, which shall be known as the High Court in Malay and shall have its principal registry at such place in the States of Malay as the Yang did-Aperture Aging may determine; and b) one in the States of Saba and Karakas, which shall be known as the High Court in Saba and Karakas and shall have its principal registry at such place in the States of Saba and Karakas as the Yang did-Aperture Aging may determine; and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law. (IA) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Assyria courts. (B) (Not related) Article 121, sets out the jurisdiction of the court. Any court in the Federal Judiciary shall have jurisdiction for matters pertaining to matter of the Federation except for matters within the jurisdiction in the Assyria Court as set out in Article 121 (IA).
Assyria Court is empower by individual States in the Federation. Article 128 – Jurisdiction of Federal Court (1) The Federal Court shall, to the exclusion of any other court, have jurisdiction to determine in accordance with any rules of court regulating the exercise of such jug iris action: (a) any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect Page 8 of 14 to which Parliament or, as the case may be, the Legislature of the State has no power to make laws; and (b) disputes on any other question between States or between the Federation and any State. 2) Without prejudice to any appellate jurisdiction of the Federal Court, where in any proceedings before another court a question arises as to the effect of any provision of this Constitution, the Federal Court shall have jurisdiction (subject to any rules of court regulating the exercise of that jurisdiction) to determine the question and remit the case to the other court to be disposed of in accordance with the determination. (3) The jurisdiction of the Federal COUrt to determine appeals from the Court of Appeal, a High Court or a judge thereof shall be such as may be provided by federal law. Article 128, provides a remedy should a question arise to the legality of laws passed by either Parliament or the individual State Legislative.