SOME people argue the restriction on the interpretation of Ahli Sunnah Wal Jamaah in the
so-called controversial Mufti (Federal Territories) Bill 2024 to only those adhering to a
certain school of thought, could be challenged in the spirit of constitutional flexibility and the
diverse Islamic interpretations
It was also contended that by virtue of Article 8 of the Federal Constitution — that there shall
be no discrimination against any person, and that all persons are equal before the law — the
restriction to persons of certain denominations within Islam to be appointed to the position of
Mufti in the Federal Territories defies Article 8, thus making the Bill unconstitutional.
In my view the possible problem with such an argument is that it tends to give Article 8 a
partial treatment. For good measure, the whole of Article 8 is reproduced hereinbelow:
(1) All persons are equal before the law and entitled to the equal protection
(2) Except as expressly authorised by this Constitution, there shall be no discrimination
against citizens on the ground only of religion, race, descent, place of 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 favour 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 jurisdiction of the authority.
(5) This Article does not invalidate or prohibit —
(a) any provision regulating personal law;
(b) any provisions 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;
(e) any provision of a Constitution of a State, being or corresponding to a provision in force
immediately before Merdeka Day;
(f) any provision restricting enlistment in the Malay Regiment to Malays. (Emphasis added)
Perhaps the case of Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin
and another appeal [2016] 2 MLJ 309 would be helpful for us to understand the true scope of
Article 8 of the Federal Constitution.
In the said case the apex court with a majority (4:1), held that the law on Article 8 was settled
in that, a law that discriminated was good law if it was based on reasonable or permissible
classification.
The doctrine of reasonable classification is a legal principle ensuring fair and just treatment
under Article 8 of the Federal Constitution.
It allows for the lawful grouping of individuals or entities based on intelligible differentia
which is a key component of the doctrine of reasonable classification, it allows for the
creation of laws that apply differently to various groups, based on clear and rational
distinctions with a rational connection to the legislative purpose.
Such a classification recognises that not all cases are identical and permits tailored treatment
for specific groups, preventing arbitrary discrimination.
By ensuring equality before the law, it safeguards against misuse by requiring a legitimate
nexus between the classification and the law’s objective.
Judicial review plays a crucial role in scrutinising the reasonableness of classifications,
maintaining a balance between recognising diverse realities and upholding constitutional
principles.
The classification should have a rational relation to the object sought to be achieved by the
law in question for it to become a valid law.
The issue as to whether a particular classification was rational or not was to be determined by
looking at the object and intent of such laws and the Rules drafted thereunder.
In Victoria Jayaseele Martinrespondent ( supra ) she was of the Christian faith who applied to
the Majlis Agama Islam Wilayah Persekutuan for admission as a syarie lawyer (peguam
syarie) in Wilayah Persekutuan. But the respondent was informed that her application was
incapable of being processed on the ground that she was not a Muslim.
According to the Majlis, under rule 10 of the Peguam Syarie Rules 1993, it was a requirement
for an applicant applying for admission as a syarie lawyer to be a Muslim.
The respondent then applied to the High Court for a judicial review and sought a few orders,
namely a declaratory order, an order of certiorari and an order of mandamus.
By way of her application the respondent sought, inter alia, a declaration that rule 10 above
was ultra vires the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505),
and was also in contravention of Articles 8(1), 8(2), 5 and 10(1)(c) of the Federal
Constitution, and as a consequence void.
The respondent applied to the High Court for a judicial review and sought a few orders,
namely a declaratory order, an order of certiorari and an order of mandamus.
By way of her application the respondent sought, inter alia, a declaration that rule 10 above
was ultra vires the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505),
and was also in contravention of Articles 8(1), 8(2), 5 and 10(1)(c) of the Federal
Constitution, and as a consequence void.
The majority held that the rule requiring only a Muslim be admitted as peguam syarie
discriminated against the respondent on adequate grounds.
Based on the foregoing reasons it is respectfully submitted that the contention that the bill
would violate Article 8 of the Constitution, with due respect, does not hold water.
On Article 8(5)(b) highlighted above, the majority judgement rules as follow “What the
respondent sought by seeking admission is the position of peguam syarie The respondent’s
ultimate objective for such admission must be to enable her to carry on that profession by
which she is able to take up appointments by clients to represent them in the Syariah Court”
The court also held “ the term ‘office’ is not defined in the Federal Constitution. Therefore it
must be accorded its normal ordinary meaning.
The Oxford Dictionary gives the meaning, among others, of ‘a position or place to which
certain duties are attached, esp one of a more or less public character’.
A peguam syarie who accepts the appointment by a client to represent him in the Syariah
Court certainly has to perform duties connected to that appointment.
As an ‘officer of the court’ a peguam syarie also had duties vis a vis the Syariah Court where
he practises.
Similarly, the term ‘employment’ is not defined in the Federal Constitution. The Concise
Oxford Dictionary defines the verb to ‘employ’ as, inter alia, to ‘use the services of (a person)
in return for payment’.
The term ‘employment’ is defined as ‘(1) The act of employing or the state of being
employed. (2) A person’s regular trade or profession’.
There can be no doubt that when the respondent sought to be admitted as a peguam syarie she
was seeking to be admitted to an ‘office’ that would enable her to then accept ‘employment’
by clients to represent them in the Syariah Court and carry on her profession in the Syariah
Courts.
Given the jurisdiction of the Syariah Courts, that office and that employment are certainly
connected to the affairs of the religion of Islam. Consequently, a provision restricting
admission as peguam syarie to Muslims is within the constitutional exception in Article
8(5)(b).
Based on the above ruling we may safely argue that the restriction in the Bill seems to be
within the constitutional exception in Article 8(5)(b) of the Federal Constitution. – November 8, 2024
Mohamed Hanipa Maidin is the former Deputy Minister of law
