Majlis Agama Islam Wilayah Persekutuan V Victoria Jayaseele Martin

Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele
[2016] 2 MLJ Martin and another appeal (Raus Sharif PCA) 309
A Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele

Martin and another appeal
B FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NOS 01(f )-10/03

OF 2014 (W) AND 01(f )-09/03 OF 2014(W)
RAUS SHARIF PCA, SURIYADI, AHMAD MAAROP, AZAHAR
MOHAMED AND ZAHARAH IBRAHIM FCJJ
24 MARCH 2016
C
Constitutional Law — Administration of Islamic law — Admission of syarie
lawyers — Right of non-Muslim lawyer to be admitted as syarie lawyer in Wilayah
Persekutuan — Whether Majlis empowered under s 59(2) of the Administration
of Islamic Law (Federal Territories) Act 1993 (‘the Act’) to make the Peguam Syarie
D
Rules 1993 (‘Rules’) relating to qualifications of admission of persons as syarie
lawyer — Whether Majlis could prescribe faith of person to be a syarie lawyer
— Whether r 10 of the Rules that imposed condition that syarie lawyer applicant
must be a Muslim ultra vires the Act — Legislation — Delegated legislation
— Whether delegated legislation could impose rules which were not authorised by
E
parent statute — Whether s 59(2) of the Act merely enabling provision for Majlis
to make Rules to regulate procedure and qualifications for admission as syarie
lawyer — Whether that part of r 10 of the Rules mandating that only Muslims
could be admitted as syarie lawyer ultra vires s 59(1) of the Act — Federal
Constitution — Whether Majlis’ power to make rules pursuant to s 59(2) was
F
invalidated on ground of unconstitutionality — Whether r 10 discriminated on
adequate grounds and was based on reasonable or permissible classification
— Whether provision restricting admission as peguam syarie to Muslims within
constitutional exception in art 8 cl (5)(b) of the Federal Constitution — Whether
that part of r 10 of the Rules mandating that only Muslims could be admitted as
G
peguam syarie in contravention of arts 5, 8(1), or 10(1)(c) of the Constitution
Statutory Interpretation — Construction of statutes — Literal approach

— Whether s 59(1) of the Administration of Islamic Law (Federal Territories) Act
H 1993 (‘the Act’) had to be read subject to s 59(2) — Whether words ‘subject to’
should considered in interpreting any section in a statute — Whether s 59(2)(a) of
the Act clothes Majlis with power to make rules pertaining to ‘qualifications’ for the
admission of peguam syarie
I Victoria Jayaseele Martin (‘the respondent’) was an advocate and solicitor of the
High Court of Malaya and a holder of a Diploma in Syariah Law and Practice
(‘DSLP’) conferred by the International Islamic University Malaysia. The
appellant, the Majlis Agama Islam Wilayah Persekutuan (‘the Majlis’), which
was at all material times a body incorporated under the Administration of
310 Malayan Law Journal [2016] 2 MLJ
Islamic Law (Federal Territories) Act 1993 (‘the Act’), was charged under s 59 A
of the Act with the power to admit syarie lawyers to represent parties in any
proceedings before the Syariah Courts, in the Federal Territories (‘Wilayah
Persekutuan’). The respondent, who was of the Christian faith, applied to the
Majlis for admission as a syarie lawyer in Wilayah Persekutuan. The respondent
was informed that her application was incapable of being processed on the B
ground that she was not a Muslim. According to the Majlis under r 10 of the
Peguam Syarie Rules 1993 (‘the Rules’) it was a requirement for an applicant
applying for admission as a syarie lawyer to be a Muslim. 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 C
her application the respondent sought, inter alia, a declaration that r 10 of the
Rules was ultra vires the Act, and was also in contravention of arts 8(1), 8(2), 5
and 10(1)(c) of the Federal Constitution (‘the Constitution’), and as a
consequence void. The Majlis in turn applied to strike out the respondent’s
application for judicial review for want of jurisdiction since it involved matters D
within the jurisdiction of the Syariah Court. The respondent’s application for
judicial review and the Majlis’ striking out application were heard together by
the High Court. The High Court judge dismissed the striking out application
on jurisdictional grounds. The High Court also dismissed the respondent’s
application for judicial review, on the grounds that the Majlis was empowered E
under s 59(2) of the Act to make the Rules relating to the qualifications of
admission of persons as syarie lawyer, including the power to impose the
condition that a syarie lawyer applicant must be a Muslim. Aggrieved by the
High Court decision, the respondent appealed to the Court of Appeal, which
allowed the respondent’s appeal and declared that r 10 of the Rules was ultra F
vires the Act. The Majlis then applied for and obtained the leave of this court
to proceed with the present appeal that raised two questions of law, namely
whether r 10 of the Rules was ultra vires the Act and whether r 10 of the Rules
was in contravention of arts 8(1), 8(2), 5 and 10(1)(c) of the Constitution, and
thus void. The Majlis submitted that due to the clear and plain language of s G
59(1) of the Act, it had to be read subject to s 59(2) of the Act and that in short,
the discretion of the Majlis to admit any person with sufficient knowledge of
Islamic Law to be a syarie lawyer was subject to sub-s (2). The appellant further
contended that its power to legislate on the qualification of a syarie lawyer was
based on Islamic Jurisprudence and that art 8(5) of the Constitution provided H
lawful discrimination based on classification. The respondent argued that
s 59(1) of the Act imposed only one condition to become a syarie lawyer, that
is a person should have ‘sufficient knowledge of Islamic law’. According to the
respondent, s 59(2) of the Act was merely an enabling provision for the
appellant to make rules to regulate the procedure and qualifications for I
admission as a syarie lawyer. Being a delegated legislation, the Rules had to fall
within the scope of the power granted to it by the Act. In other words,
delegated legislation could not impose rules which were not authorised by the
parent statute. Consequently, that part of r 10 which alluded to faith was ultra
A vires the Act and therefore liable to be declared void, as it had exceeded the
limits prescribed by the parent law by creating an inconsistency with it. On the
constitutional aspect, the respondent began by alluding to art 8(1), which
provided that all persons were equal before the law, and entitled to the equal
protection of the law. The respondent thus submitted that as a citizen she was
B entitled to plead art 8(2), as she was discriminated against on the ground of
religion, in pursuance of her profession as a syarie lawyer.
Held, allowing the appeals with no order as to costs:
C (1) (per Raus Sharif PCA, majority) There was a sharp differing view
between the parties as to the interpretation of the words ‘subject to sub-s
(2)’ in s 59(1) of the Act. The words ‘subject to’ mean conditional or
dependent upon something, which implied that the application of
s 59(1) of the Act was conditional and dependent upon the provision in
D s 59(2). In other words, the words ‘subject to’ should be a factor to be
considered in interpreting any section in a statute and in the present case,
the term ‘subject to’ in the beginning of s 59(1) of the Act was not merely
an enabler, but an important part of the provision which may determine
the manner in which the provision was to be read and construed. Thus,
E the term ‘any person having sufficient knowledge of Islamic law’ as found
in s 59(1) was meant to be read subject to the powers of the Majlis
pursuant to s 59(2) to make rules to provide for the procedures,
qualifications and fees for the admission of peguam syarie in Wilayah
Persekutuan. Thus, s 59(1) of the Act should be read harmoniously with
F s 59(2)(a) of the Act (see paras 23–27).
(2) (per Raus Sharif PCA, majority) Clearly, s 59(2)(a) of the Act clothes
the Majlis with the power to make rules pertaining to ‘qualifications’ for
the admission of a peguam syarie. The word ‘qualification’ was not defined
in the Act, nor the Interpretation Act 1948 and 1967. Therefore, it
G should be given its ordinary and plain meaning as prescribed in the
English language. The approach taken by the High Court judge that the
word ‘qualifications’ used in s 59(2) was wide enough to enable the Majlis
to impose the conditions appearing in r 10 of the Rules, was correct. The
fallacy of the respondent’s argument was in placing undue emphasis on
H the word ‘any person having sufficient knowledge of Islamic law’ and
giving scant regard to the opening words of s 59(1) of the Act where the
rest of the provisions came into play through the usage of the word
‘subject to’. In effect the additional qualifications required by the Majlis
under r 10, read together with the qualification of ‘any person with
I sufficient knowledge of Islamic law’ appearing in s 59(1) of the Act,
would complete the definition as to who may be appointed as a peguam
syarie for the purposes of the Act. By saying that the Majlis could not
prescribe the faith of a person to be a Muslim to be a peguam syarie, the
respondent was saying that the Majlis also could not prescribe other
conditions which appeared in r 10 of the Rules. However, to interpret A

‘any person having sufficient knowledge of Islamic law’ in s 59(1) of the
Act, as the only requirement to be admitted as peguam syarie would be
repugnant to the intention of the Act and lead to some manifest
absurdity. In the circumstances, the respondent’s contention was
untenable and that part of r 10 of the Rules mandating that only Muslims B
could be admitted as peguam syarie was not ultra vires s 59(1) of the Act
(see paras 28–35).
(3) (per Raus Sharif PCA, majority) The law on art 8 of the Constitution
was settled in that, a law that discriminated was good law if it was based C
on reasonable or permissible classification. However, the classification
should have 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 D
thereunder. In the context of the present case, in order to appreciate the
real intent and object of the law, it was crucial to look at the whole scheme
of the Act. It was clear that the object of the Act was to enforce and
administer Islamic law as well as to provide for the constitution and
organisation of the Syariah Court. It was common ground that the E
Syariah Court had jurisdiction only over persons professing the religion
of Islam. Hence, the persons appearing before the Syariah Court should
also be subjected to its jurisdiction. The Syariah Court ought to be able to
enforce its laws and rules on a peguam syarie, as for instance, when
contempt or any breach of the rules was committed by any party. Surely, F
the Syariah Court would not be able to enforce its laws and rules against
the respondent, as she was a non-Muslim. The Syariah Court had no
jurisdiction against her. The Majlis in exercising its delegated power
made rules, inter alia, that only a Muslim may be admitted as peguam
syarie. Thus, if the Legislature deemed it necessary that for the purpose of G
achieving the object of Act, it required a rule that only a Muslim may be
admitted as peguam syarie and that rule was made directed to the
problem, and it discriminated on adequate grounds, then the law did not
violate art 8 of the Constitution and was therefore a good law (see paras
45–50). H
(4) (per Raus Sharif PCA, majority) Further, having a peguam syarie who
professed the religion of Islam was important to achieve the object of the
Act. Faith here being the cornerstone was necessary to achieve the object
of the Act. One of the most important criteria which made an upright
and virtuous peguam syarie was for the lawyer to have ‘Aqidah’ which I
means belief with certainty and conviction in one’s heart and soul in
Allah and His divine Law. Thus, from the perspective of Syariah, it was
fundamentally crucial for peguam syarie to be selected among the
Muslims and only those who have faith in the religion of Islam and who
A are able to perform their duties with full conviction of that belief (see para
51).
(5) (per Raus Sharif PCA, majority) The issue on the deprivation of the
respondent’s livelihood was misplaced as based on the facts of this case as
B the respondent was not deprived of her law practice in the civil court. The
respondent’s reliance on art 10(1)(c) of the Constitution was also without
any merit. It was clear that art 10(1)(c) referred specifically to the ‘right to
form associations’, and not to the right to be a member of any profession
or association. In the circumstances, that part of r 10 of the Rules
C mandating that only Muslims can be admitted as peguam syarie, was not
in contravention of arts 5, 8(1), or 10(1)(c) of the Constitution (see paras
52–58).
(6) (per Suriyadi FCJ, dissenting) Shorn of all the frills, with the
introduction of r 10 in the current format, the Majlis had now rewritten
D s 59(1) by effectively making it read, ‘any Muslim with sufficient
knowledge of Islamic law’ may become a peguam syarie. This was clearly
a case of a subsidiary legislation subjugating a parent legislation. Now, a
non-Muslim, in this case a Christian, however academically endowed,
was effectively barred from applying to be a peguam syarie. With the
E Hansard report clearly evincing that it was never the intention of
Parliament to shut the doors to academically endowed non-Muslims
having sufficient knowledge of Islamic law to appear in any Syariah
Court, and s 59(1) in its ordinary and natural sense easily understood, it
was thus the primary duty of the court to give effect to the intention of
F Parliament. Had it been the intention of Parliament to merely allow
Muslims to be peguam syarie, that religious requirement could have been
inserted in s 59(1) without much hassle. A perusal of the impugned part
of r 10 showed that it was not in sync with the object of the Act, as the
importation of a religious requirement in this subsidiary piece of
G legislation without more, had disqualified an otherwise eligible candidate
here (see paras 108–109, 112 & 116–117).
(7) (per Suriyadi FCJ, dissenting) In the current appeal r 10 was clearly
ultra vires its parent law, as it has gone past the limit prescribed by the Act.
H Admitting only Muslims as peguam syarie had no nexus to the object of
the Act. This additional requirement which militated against the very
intention of Parliament was contextually unsustainable, and had
imposed a restrictive and draconian qualification that was not subscribed
in the Act. The Majlis could not by way of a subsidiary legislation, make
I r 10 that was inconsistent with s 59(1) of the Act. Rule 10 of the Rules
was thus ultra vires the parent Act (see paras 125 & 152).
(8) (per Suriyadi FCJ, dissenting) In the present case, 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 A
Syariah Courts. Given the jurisdiction of the Syariah Courts, that office
and that employment were certainly connected to the affairs of the
religion of Islam. Consequently, a provision restricting admission as
peguam syarie to Muslims was within the constitutional exception in art 8
cl (5)(b) of the Constitution. In the light of the clear purpose of art B
10(1)(c), which had nothing to do with admission as a peguam syarie, the
respondent’s argument premised on this article should fail (see para 139).
[Bahasa Malaysia summary
Victoria Jayaseele Martin (‘responden’) ialah seorang peguambela dan C
peguamcara Mahkamah Tinggi Malaya dan memegang Diploma Amalan dan
Undang-Undang Syariah (‘DAUS’) yang diberikan oleh Universiti Islam
Antarabangsa Malaysia. Perayu, Majlis Agama Islam Wilayah Persekutuan
(‘Majlis tersebut’), yang mana pada setiap masa matan sebuah badan yang
ditubuhkan di bawah Akta Undang-Undang Pentadbiran Islam D
(Wilayah-Wilayah Persekutuan) 1993 (‘Akta tersebut’) telah dituduh di bawah
s 59 Akta tersebut yang mempunyai kuasa untuk menerima peguam-peguam
syarie bagi mewakili pihak-pihak dalam apa-apa prosiding di hadapan
Mahkamah Syariah, di Wilayah Persekutuan. Responden, seorang beragama
Kristian, telah memohon kepada Majlis tersebut untuk diterima sebagai E
peguam syarie di Wilayah Persekutuan. Responden telah diberitahu bahawa
permohonannya tidak dapat diproses atas alasan dia bukan seorang Muslim.
Menurut Majlis tersebut di bawah k 10 Kaedah-Kaedah Peguam Syarie 1993
(‘Kaedah tersebut’), ia adalah keperluan untuk pemohon yang memohon
untuk diterima sebagai peguam syarie ialah seorang Muslim. Responden F
memohon kepada Mahkamah Tinggi untuk semakan kehakiman dan
memohon beberapa perintah, iaitu perintah deklarasi, perintah certiorari dan
perintah mandamus. Melalui permohonannya responden memohon, antara
lain, deklarasi bahawa k 10 Kaedah adalah ultra vires Akta , dan juga
bertentangan dengan perkara 8(1), perkara 8(2), perkara 5 dan perkara G
10(1)(c) Perlembagaan Persekutuan (‘Perlembagaan’), dan oleh itu tidak sah.
Majlis tersebut sebaliknya telah memohon untuk membatalkan permohonan
semakan kehakiman responden kerana tiada bidang kuasa yang melibatkan
perkara dalam bidang kuasa Mahkamah Syariah. Permohonan responden
untuk semakan kehakiman dan permohonan pembatalan Majlis tersebut telah H
didengar bersama oleh Mahkamah Tinggi. Hakim Mahkamah Tinggi telah
menolak permohonan pembatalan itu atas alasan berkenaan bidang kuasa.
Mahkamah Tinggi juga telah menolak permohonan semakan kehakiman
responden, atas alasan Majlis tersebut telah diberikan kuasa di bawah s 59(2)
Akta untuk membuat kaedah berhubung dengan kelayakan penerimaan I
seseorang sebagai peguam syarie, termasuk kuasa untuk mengenakan syarat
bahawa pemohon peguam syarie mestilah seorang Muslim. Terkilan dengan
keputusan Mahkamah Tinggi, responden telah merayu kepada Mahkamah
Rayuan, yang membenanrkan rayuan responden dan mengisytiharkan bahawa
A k 10 Kaedah adalah ultra vires Akta. Majlis tersebut kemudian telah memohon
untuk dan memperoleh kebenaran mahkamah ini bagi meneruskan rayuan ini
yang menimbulkan dua persoalan undang-undang, iaitu sama ada k 10 Kaedah
ultra vires Akta dan sama ada k 10 Kaedah bertentangan dengan perkara 8(1),
perkara 8(2), perkara 5 dan perkara 10(1)(c) Perlembagaan, dan oleh itu tidak
B sah. Majlis tersebut berhujah bahawa kerana bahawa s 59(1) Akta adalah jelas
dan biasa, ia perlu dibaca tertakluk kepada s 59(2) Akta dan pendek kata, budi
bicara Majlis tersebut untuk menerima mana-mana orang yang mempunyai
pengetahuan yang mencukupi tentang Undang-Undang Islam untuk menjadi
peguam syarie adalah tertakluk kepada sub-s (2). Perayu selanjutnya berhujah
C
bahawa kuasanya untuk menggubal tentang kelayakan peguam syarie adalah
berdasarkan jurisprudens Islam dan bahawa perkara 8(5) Perlembagaan
memperuntukkan diskriminasi yang sah berdasarkan klasifikasi. Responden
berhujah bahawa s 59(1) Akta mengenakan hanya satu syarat untuk menjadi
D peguam syarie, iaitu seseorang itu hendaklah mempunyai ‘sufficient knowledge
of Islamic law’. Menurut responden, s 59(2) Akta hanya peruntukan sedia ada
untuk perayu membuat kaedah bagi mengawal prosedur dan kelayakan untuk
diterima sebagai peguam syarie. Sebagai perundangan perwakilan, Kaedah
perlu terangkum dalam skop kuasa yang diberikan kepadanya oleh Akta.
E Dalam erti kata lain, perundangan perwakilan tidak boleh mengenakan kaedah
yang tidak diberi kuasa oleh undang-undang induk. Akibatnya, bahagian k 10
yang merujuk kepada kepercayaan adalah ultra vires Akta dan oleh itu boleh
diisytiharkan tidak sah, kerana ia melebihi had yang ditetapkan oleh
undang-undang induk sehingga mewujudkan ketidakselarasan. Pada aspek
F perlembagaan, responden bermula dengan merujuk kepada perkara 8(1), yang
memperuntukkan bahawa semua orang adalah sama di sisi undang-undang,
dan berhak mendapat perlindungan sama di sisi undang-undang. Responden
oleh itu berhujah bahawa sebagai warganegara dia berhak mempli perkara 8(2),
kerana dia didiskriminasikan atas alasan agama, dalam memperoleh profesion
G sebagai peguam syarie.
Diputuskan, membenarkan rayuan-rayuan tanpa perintah untuk kos:

(1) (oleh Raus Sharif PCA, majoriti) Terdapat pendapat yang berbeza
antara pihak-pihak berhubung tafsiran perkataan-perkataan ‘subject to
H sub-s (2)’ dalam s 59(1) Akta. Perkataan-perkataan ‘subject to’
bermaksud bersyarat atau bergantung kepada sesuatu, yang tersirat
bahawa permohonan s 59(1) Akta adalah bersyarat dan bergantung
kepada peruntukan dalam s 59(2). Dalam erti kata lain,
perkataan-perkataan ‘subject to’ hendaklah merupakan faktor yang perlu
I dipertimbangkan dalam mentafsir mana-mana seksyen dalam statut dan
dalam kes ini, istilah ‘subject to’ di permulaan s 59(1) Akta bukan hanya
membolehkan, tetapi bahagian penting peruntukan itu yang boleh
menentukan cara di mana peruntukan itu dibaca dan ditafsirkan. Oleh
itu, istilah ‘any person having sufficient knowledge of Islamic law’
sepertimana didapati dalam s 59(1) bermaksud untuk dibaca tertakluk A

kepada kuasa-kuasa Majlis tersebut menurut s 59(2) bagi membuat
kaedah-kaedah agar memperuntukkan prosedur, kelayakan dan fi untuk
kemasukan sebagai peguam syarie di Wilayah Persekutuan. Oleh itu,
s 59(1) Akta hendaklah dibaca secara harmoni dengan s 59(2)(a) Akta
(lihat perenggan 23–27). B
(2) (oleh Raus Sharif PCA, majoriti) Adalah jelas s 59(2)(a) Akta
memberikan Majlis tersebut kuasa untuk membuat kaedah-kaedah
berkenaan ‘qualifications’ untuk penerimaan peguam syarie. Perkataan
‘qualification’ tidak ditafsirkan dalam Akta, ataupun Akta Tafsir 1948 C
dan 1967. Oleh itu, ia patut diberikan maksudnya yang biasa dan nyata
sepertimana ditetapkan dalam bahasa Inggeris. Pendekatan diambil oleh
hakim Mahkamah Tinggi bahawa perkataan ‘qualifications’ digunakan
dalam s 59(2) adalah cukup luas untuk membolehkan Majlis tersebut
mengenakan syarat-syarat dalam k 10 Kaedah, adalah betul. Kelemahan D
hujah responden adalah meletakkan penekanan yang tidak perlu ke atas
perkataan ‘any person having sufficient knowledge of Islamic law’ dan
kurang menghiraukan perkataan-perkataan pembukaan s 59(1) Akta di
mana peruntukan lain berfungsi melalui penggunaan perkataan ‘subject
to’. Sebagai kesan kelayakan tambahan yang dikehendaki oleh Majlis E
tersebut di bawah k 10, dibaca bersama kelayakan ‘any person with
sufficient knowledge of Islamic law’ yang terdapat dalam s 59(1) Akta,
akan melengkapkan definisi berhubung siapa yang boleh dilantik sebagai
peguam syarie bagi matlamat Akta. Dengan mengatakan bahawa Majlis
tersebut tidak boleh menetapkan agama seseorang itu adalah Islam untuk F
menjadi peguam syarie, responden mengatakan bahawa Majlis tersbeut
juga tidak boleh menetapkan syarat lain yang terdapat dalam k 10
Kaedah. Walau bagaimanapun, untuk mentafsir ‘any person with
sufficient knowledge of Islamic law’ dalam s 59(1) Akta, sebagai
satu-satunya keperluan untuk diterima sebagai peguam syarie adalah G
bertentangan dengan niat Akta dan membawa kepada suatu yang tidak
munasabah langsung. Dalam keadaan itu, hujah responden tidak boleh
dikekalkan dan bahagian k 10 Kaedah yang memberi mandate bahawa
hanya orang Muslim boleh diterima sebagai peguam syarie tidak ultra
vires s 59(1) Akta (lihat perenggan 28–35). H
(3) (oleh Raus Sharif PCA, majoriti) Undang-undang berhubung perkara
8 Perlembagaan adalah tetap di mana, undang-undang yang
mendiskriminasikan adalah undang-undang baik jika ia berdasarkan
klasifikasi yang munasabah atau dibenarkan. Walau bagaimanapun,
klasifikasi itu hendaklah mempunyai kaitan rasional dengan matlamat I
yang ingin dicapai dari segi undang-undang yang dipersoalkan agar ia
menjadi undang-undang sah. Isu sama ada klasifikasi tertentu adalah
rasional atau tidak ditentukan dengan melihat kepada matlamat dan niat
undang-undang sebegini dan Keadah telah digubal sedemikian. Dalam
A konteks kes ini, bagi matlamat memahami niat dan matlamat sebenar
undang-undang, ia adalah penting untuk melihat keseluruhan skima
Akta. Adalah jelas bahawa matlamat Akta adalah untuk menguatkuasa
dan mentadbir undang-undang Islam dan juga memperuntukkan
perlembagaan dan penubuhan Mahkamah Syariah. Adalah alasan biasa
B bahawa Mahkamah Syariah mempunyai bidang kuasa hanya ke atas
orang yang beragama Islam. Justeru, orang yang hadir di hadapan
Mahkamah Syariah juga hendaklah tertakluk kepada bidang kuasanya.
Mahkamah Syariah patut boleh menguatkuasakan undang-undang dan
kaedahnya berhubung peguam syarie, sebagai contoh, apabila
C penghinaan atau apa-apa pelanggaran kaedah tersebut dilakukan oleh
mana-mana pihak. Pasti Mahkamah Syariah tidak dapat
menguatkuasakan undang-undang dan kaedahnya terhadap responden,
kerana dia bukan seorang Muslim. Mahkamah Syariah tiada bidang
kuasa terhadapnya. Majlis tersebut dalam melaksanakan kuasa
D perwakilan yang membuat kaedah, antara lain, bahawa hanya seorang
Muslim boleh diterima sebagai peguam syarie. Oleh itu, jika badan
perundangan menganggap ia perlu bagi matlamat mencapai objektif
Akta, ia memerlukan satu kaedah bahawa hanya seorang Muslim boleh
diterima sebagai peguam syarie dan bahawa kaedah tersebut dibuat
E untuk menangani masalah itu, dan ia mendiskriminasikan atas alasan
mencukupi maka undang-undang itu tidak melanggar perkara 8
Perlembagaan dan oleh itu adalah undang-undang baik (lihat perenggan
45–50).
F (4) (oleh Raus Sharif PCA, majoriti) Selanjutnya, mempunyai peguam

syarie yang beragama Islam adalah penting untuk mencapai matlamat
Akta. Kepercayaan di sini sebagai asas adalah perlu untuk mencapai
matlamat Akta. Salah satu kriteria paling penting yang menjadikan
peguam syarie yang jujur dan berakhlak mulia adalah untuk peguam itu
G mempunyai ‘Aqidah’ yang bermaksud kepercayaan yang pasti dan
menyerahkan kepada Allah dan pengadilanNya. Oleh itu, dari perspektif
hukum Syariah, ia adalah penting bagi peguam syarie dipilih di kalangan
orang Muslim dan hanya mereka yang mempunyai kepercayaan dalam
agama Islam dan mereka yang boleh melaksanakan kewajipan mereka
H dengan sepenuh hati terhadap kepercayaan itu (lihat perenggan 51).
(5) (oleh Raus Sharif PCA, majoriti) Isu berhubung kilanan kehidupan
responden tidak berasas kerana berdasarkan fakta kes ini responden tidak
terkilan dalam amalan undang-undangnya di mahkamah sivil.
Kebergantungan responden kepada perkara 10(1)(c) Perlembagaan juga
I adalah tanpa merit. Adalah jelas bahawa perkara 10(1)(c) merujuk secara
khusus kepada ‘right to form associations’, dan bukan hak menjadi ahli
mana-mana profesion atau persatuan. Dalam keadaan berikut, bahagian
k 10 Kaedah yang memberi mandat bahawa hanya orang Muslim boleh
diterima sebagai peguam syarie, tidak bertentangan perkara 5, 8(1), atau
10(1)(c) Perlembagaan (lihat perenggan 52–58). A

(6) (oleh Suriyadi HMP, menentang) Pengenalan k 10 dalam format
terkini, Majlis tersebut kini meminda s 59(1) yang memberi kesan
apabila dibaca, ‘any Muslim with sufficient knowledge of Islamic law’
boleh menjadi peguam syarie. Ini jelas kes perundangan kecil B
mengetepikan perundangan induk. Sekarang, seorang bukan Muslim,
dalam kes seorang beragama Kristian, walaupun mempunyai akademik
yang tinggi, secara efektif dihalang daripada memohon untuk menjadi
peguam syarie. Laporan Hansard jelas mengatakan bahawa ia bukan niat
Parlimen untuk menutup pintu kepada orang bukan Muslim yang C
mempunyai akademik tinggi dan pengetahuan mencukupi tentang
undang-undang Islam untuk hadir di mana-mana Mahkamah Syariah,
dan s 59(1) dalam sifat semulajadi dan biasanya mudah difahami, ia
dengan itu adalah kewajipan utama mahkamah untuk memberi kesan
kepada niat Parlimen. Jika ia niat Parlimen untuk hanya membenarkan D
orang Muslim menjadi peguam syarie, keperluan agama itu mungkin
boleh dimasukkan dalam s 59(1) tanpa kekecohan. Penelitian bahagian
k 10 yang dipersoalkan menunjukkan bahawa ia tidak selaras dengan
matlamat Akta kerana dengan memasukkan keperluan agama dalam
perundangan kecil dengan itu sebaliknya tidak melayakkan calon E
berkelayakan di sini (lihat perenggan 108–109, 112 & 116–117).
(7) (oleh Suriyadi HMR, menentang) Dalam rayuan ini k 10 jelas ultra
vires undang-undang induknya, kerana ia telah melebihi had yang
ditetapkan oleh Akta. Dengan menerima hanya orang Muslim sebagai F
peguam syarie tiada kaitan dengan matlamat Akta. Keperluan tambahan
ini yang menghalang niat Parlimen tidak boleh dikekalkan mengikut
konteks, dan telah mengenakan kelayakan yang terbatas dan draconian
yang tidak dinyatakan dalam Akta. Majlis tersebut tidak boleh melalui
perundangan kecil, menjadikan k 10 yang tidak konsisten dengan s 59(1) G
Akta. Kaedah 10 Kaedah oleh itu adalah ultra vires Akta ibu (lihat
perenggan 125 & 152).
(8) (oleh Suriyadi HMP, menentang) Dalam kes ini, apabila responden
memohon untuk diterima sebagai peguam syarie dia memohon untuk H
diterima ke dalam ‘office’ yang membolehkannya kemudian menerima
‘employment’ oleh anak guam bagi mewakili mereka dalam Mahkamah
Syariah dan menjalankan profesionnya di Mahkamah Syariah.
Berdasarkan bidang kuasa Mahkamah Syariah, pejabat dan pekerjaan
tersebut sudah tentu dikaitkan dengan urusan agama Islam. Berikutan I
itu, satu peruntukan menghalang kemasukan sebagai peguam syarie
kepada orang Muslim adalah pengecualian perlembagaan dalam perkara
8 fasal (5)(b) Perlembagaan. Berdasarkan tujuan jelas perkara 10(1)(c),
yang tiada kaitan dengan kemasukan sebagai peguam syarie, hujah
A responden yang berasaskan perkara ini patut gagal (lihat perenggan

139).]
Notes
For cases on literal approach, see 11(2) Mallal’s Digest (5th Ed, 2015) paras
B 1921–1953.
Cases referred to
Abdul Ghani bin Ali Ahmad & Ors v PP [2001] 3 MLJ 561; [2001] 3 CLJ 769,
FC (refd)
C Aminah v Superintendant of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ
92 (refd)
Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285; [2008] 1
CLJ 521, FC (refd)
Bharat Barrel & Drum Manufacturing Co Pte Ltd v Employees State Insurance
D Corporation AIR 1972 SC 1935, SC (refd)
Chin Choy & Ors v Collector of Stamp Duties [1979] 1 MLJ 69, FC (refd)
Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345, FC (refd)
Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia,
Interverner) [2004] 2 MLJ 257, FC (refd)
E Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed
Idrus [1981] 1 MLJ 29, FC (refd)
Datuk Haji Harun bin Haji Idris v PP [1977] 2 MLJ 155, FC (refd)
Dunkley v Sullivan, Re [1930] 1 Ch 84, Ch D (refd)
Government of Malaysia & Anor v Selangor Pilot Association [1977] 1 MLJ 133,
F PC (refd)
Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33, FC (folld)
Government of the Federation of Malaya v Surinder Singh Kanda [1961] 1 MLJ
121, CA (refd)
Ira & AC Berk Ltd v Commonwealth of Australia [1930] 30 SR (NSW) 119
G (refd)
Lee Kwan Woh v PP [2009] 5 MLJ 301; [2009] 5 CLJ 631, FC (refd)
Lembaga Minyak Sawit Malaysia v Arunamari Plantation Sdn Bhd & Ors and
Another Appeal [2015] 4 MLJ 701; [2015] 5 MLRA 1, FC (refd)
Lo Pui Sang and Others v Mamata Kapildev Dave and Others (Horizon Partners
H Pte Ltd, Intervener) and Other Appeals [2008] 4 SLR 754, HC (refd)
Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119, SC
(refd)
Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 (refd)
Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v
I Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113; [2006] 3 CLJ 177, FC (refd)
NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ 39, SC (refd)
PP v Khong Teng Khen & Anor [1976] 2 MLJ 166, FC (refd)
Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable
Oils Sdn Bhd & another appeal [2005] 3 MLJ 97, FC (refd)
Palmco Holdings Bhd v Commissioner of Labour & Anor [1986] 1 MLJ 492, SC A
(refd)
Pepper v Hart [1993] AC 593, HL (refd)
Perbadanan Kemajuan Kraftangan Malaysia v DW Margaret a/p David Wilson
(t/a Kreatif Kraf ) [2010] 2 MLJ 713; [2009] 4 MLRA 265, FC (folld)
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72, FC B
(refd)
PP v Su Liang Yu [1976] 2 MLJ 128 (refd)
S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982]
1 MLJ 204, FC (refd)
C
Shri Ram Krishna Dalmia v Shri Justice SR Tendolkar & Ors AIR 1958 SC 538,
SC (refd)
Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333; [2010]
3 CLJ 507, FC (refd)
T Ramsay Ltd v Inland Revenue Commissioners [1982] AC 300, HL (refd) D
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ
261, CA (refd)
Taylor v Dental Board of South Australia [1940] SASR 306 (refd)
Tenaga Nasional Bhd v Ong See Teong & Anor (suing on their behalf and for all
parties who are the owners or tenants of the Kampung Sungai Terentang – which E
was served with a notice under ss 13 and 16 of the Electricity Supply Act 1990)
[2010] 2 MLJ 155, FC (refd)
V Sudeer v Bar Council of India AIR 1999 SC 1167, SC (refd)
Legislation referred to
F
Administration of Islamic Law (Federal Territories) Act 1993 ss 4(1), 10, 42,
59, 59(1), (2), (2)(a), (3)
Advocates Act 1961 [IND]
Dentists Act 1931 [AU]
Federal Constitution art 4(1), 5 , 5(1), 6, 7, 8, 8(1), (2), (5), (5)(a), G
(5)(b), 9, 10, 10(1)(c), 11, 12, 13, 150, Ninth Schedule, List II, Item (1)
Interpretation Act 1948 and 1967 ss 17A, 23, 23(1)
Legal Aid Act 1971 s 3
Peguam Syarie Rules 1993 rr 3 , 10 , 10(b), (c), (d), (e)
Rules of the High Court 1980 O 18 r 19
H
Constitution of the Republic of Singapore [SG] art 9(1)
Appeal from: Civil Appeal No W-01–242 of 2011

Sulaiman Abdullah (Haniff Khatri, Zulkifli bin Che Yong, Azmi bin Mohd Rai ,
Ilyani bt Noor Khuszairy and Abdul Rahim Sinwan with him) (Zulkifli Yong I
Azmi & Co) in Civil Appeal No 01(f )-10/3 of 2014(W) for the appellant.
Suzana bt Atan (Arik Sanusi bin Yeop Johari and Shamsul bin Bolhassan with her)
(Attorney General’s Chambers) in Civil Appeal No 01(f )-9/3 of 2014(W) for the
appellant.
A Cyrus Das (Benjamin Dawson, Ranjit Singh, Villie Nethi with him) (Ranjit Singh
& Yeoh) in Civil Appeal Nos 01(f )-10/3 of 2014(W) and 01(f )-9/3 of 2014(W)
for the respondant.
Eugene Roy Joseph (watching brief for Catholic Lawyers Society of Kuala Lumpur).
B Raus Sharif PCA (delivering majority judgment of the court):
INTRODUCTION
[1] These two appeals raises the issue of whether a non-Muslim can be
C admitted as peguam syarie to represent parties in any proceedings before the
Syariah Court in Wilayah Persekutuan, Kuala Lumpur. In Appeal No 01
(f )-10/03 of 2014(W), the appellant is the Majlis Agama Islam Wilayah
Persekutuan (‘the Majlis’) while in Appeal No 01(f )-09/03 of 2014(W) the
appellant is the Peguam Negara Malaysia.
D
[2] The respondent in both these appeals is Victoria Jayaseele Martin, an

advocate and solicitor of the High Court of Malaya. She is also a Diploma
holder in Syariah Law and Practice from the International Islamic University of
E Malaysia. She is of the Christian faith.
[3] For convenience, we will refer the appellant in Appeal No 01(f )-10/03 of
2014(W) as the Majlis, while the appellant in Appeal No 01(f )-09/03 of 2014
as the Attorney General.
F
BACKGROUND FACTS
[4] To state briefly, the respondent by a letter dated 24 August 2009 applied
to the Peguam Syarie Committee established by the Majlis pursuant to r 3 of
G the Peguam Syarie Rules 1993 (‘the Rules’) for an admission as a peguam syarie.
[5] By a letter dated 9 September 2009 the Peguam Syarie Committee

informed the respondent that her application was incapable of being processed
as she is a non-Muslim and therefore had not met the requirement as set out in
H r 10 of the Rules in that the applicant must be a Muslim.
[6] Aggrieved with the decision of the Peguam Syarie Committee, the
respondent applied for judicial review and sought the following reliefs:
I (a) a declaration that, that part of r 10 of the Peguam Syarie Rules mandating
that only Muslims can be admitted as peguam syarie is ultra vires the
Administration of Islamic Law (Federal Territories) Act 1993;
(b) a declaration that, that part of r 10 of the Peguam Syarie Rules 1993
mandating that only Muslims can be admitted as peguam syarie is in
contravention of art 8(1) and/or art 8(2) and/or art 5 and/or art 10(1)(c) A
of the Federal Constitution and as a consequence is void;
(c) an order of certiorari to quash the decision of the Majlis in refusing to
process the respondent’s application to be admitted as a peguam syarie;
and B
(d) an order of mandamus to compel the Majlis to receive and process the
respondent’s application to be admitted as a peguam syarie without regard
to the fact that the respondent is a non-Muslim.
C
[7] The Majlis then applied to strike out the respondent’s application for
judicial review for want of jurisdiction since it involved matters within the
jurisdiction of the Shariah Court. The respondent’s application for judicial
review and the Majlis striking out application were heard together by the High
Court. D
AT THE HIGH COURT
[8] Before the High Court, learned counsel for the respondent contended
that r 10 of the Rules is ultra vires s 59(1) of the Administration of Islamic Law E
(Federal Territories) Act 1993 (‘the Act’) as it was made outside the ambit and
requirement of s 59(1), which stipulates that ‘the Majlis may admit any person
having sufficient knowledge of Islamic law to be peguam syarie to represent
parties in any proceedings before the Syariah Court’. Learned counsel argued
that based on s 59(1) of the Act a person need not be a Muslim to have F
sufficient knowledge of Islamic law. (The ultra vires question.)
[9] Learned counsel further argued that the enactment of r 10 of the Rules is
against the liberty and equality clauses under arts 5, 8, 10 and 11 of the Federal
Constitution. (The constitutional question.) G
[10] In reply to the ultra vires question, learned counsel for the Majlis
contended that the Majlis is empowered under s 59(2) of the Act to legislate on
the qualifications of peguam syarie as s 59(2) of the Act gives the power to the
Majlis to make rules ‘to provide for the procedure, qualifications and fees for H
the admission of peguam syarie’.
[11] With regard to the constitutional question, learned counsel’s stance was
that the fundamental right under art 5(1) of the Federal Constitution is not
absolute and this right can be taken away by law duly passed by the Parliament. I
As for infringement of art 8(1) of the Federal Constitution, learned counsel
emphasised that art 8 does not preclude the making reasonable of classification
of categories, so long as there is no discrimination among the members of that
category.
A [12] On 17 March 2011, the learned High Court judge dismissed the
respondent’s application for judicial review and also the Majlis striking out
application. The learned High Court judge ruled that the Majlis is empowered
under s 59(2) of the Act to make rules relating to qualifications for admission
of persons as peguam syarie, including the power to impose a condition that the
B applicant must be a Muslim. Her Ladyship in addressing the ultra vires
question and the constitutional question held that:
(a) since s 59(1) of the Act begins with the opening words ‘subject to sub-s
(2)’, it must be read subject to sub-s (2). In plain language it means that
C the discretion of the Majlis to admit any person with sufficient
knowledge of Islamic law to be peguam syarie is subject to sub-s (2), and
that s 59(1) of the Act does not stand alone without any condition.
Further, the words ‘may admit’ in s 59(1) of the Act denote that it is not
mandatory for the Majlis to admit a person solely on the basis of having
D sufficient knowledge of Islamic law. It was the intent of the Legislature to
delegate to the Majlis the power to determine the necessary qualifications
at its discretion. Hence, Majlis was empowered to add, vary or to limit the
said qualifications and was empowered by virtue of s 59(2) of the Act to
regulate the qualifications of a peguam syarie;
E
(b) in the absence of the definition of ‘qualification’ in the Act or in the
Interpretation Act, the plain and ordinary meaning of the word has to be
adopted. In this regard, the plain and ordinary meaning of the word
‘qualification’ is wide enough to allow Majlis to impose the conditions
F appearing in r 10 of the Rules; and
(c) the impugned r 10 of the Rules did not contravene art 8 of the Federal
Constitution and was not unconstitutional. The legislature deemed it
necessary that for the purpose of achieving the object of the Act, it
required a rule that only a Muslim may be admitted as a peguam syarie and
G as such that rule was made directed to the problem, manifest by
experience. Since it discriminated on adequate grounds, then the law did
not violate art 8 of the Federal Constitution. Further, having a Syarie
lawyer who professes the religion of Islam will achieve the object of the
Act with faith being a dimension necessary in its approach. In such a case
H there was nexus between the impugned rule and the object of the Act.
AT THE COURT OF APPEAL
[13] Aggrieved by the High Court decision, the respondent appealed to the
I Court of Appeal. The Court of Appeal allowed the respondent’s appeal. In
setting aside the orders of the High Court, the Court of Appeal granted the
respondent the orders of certiorari and mandamus and declared that r 10 of the
Rules mandating that only Muslims may be admitted as peguam syarie was ultra
vires s 59(1) of the Act. The Court of Appeal in doing so held that:
(a) r 10 of the Rules which provided that a person may be admitted as a A

peguam syarie if he or she is a Muslim is contrary to s 59(1) of the Act
which expressly allowed the Majlis to admit ‘any person having
sufficient knowledge of Islamic law’ to be admitted as peguam syarie. In
the absence of any definition, the words ‘any person’ in s 59(1) of the Act
in their natural meaning must mean any person regardless of his or her B
religion. There was nothing in the Act to restrict the meaning of the
words ‘any person’ to mean ‘any Muslim’;
(b) the Rules made under s 59(2) of the Act were a form of subsidiary
legislation and they did not stand on equal footing as the Act and could C
not override the Act. The powers of the Majlis to admit any person
having sufficient knowledge of Islamic law as peguam syarie was
conferred by the Act. The Majlis could not by way of subsidiary
legislation, make rules inconsistent with or contrary to s 59(1) of the
Act; D
(c) the phrase ‘subject to sub-s (2)’ in s 59(1) of the Act did not make s 59(1)
subservient to s 59(2) because s 59(2) itself did not take away or curtail
the powers of the Majlis to admit any person having sufficient
knowledge of Islamic law as a peguam syarie. Section 59(2) was merely an E
enabling provision which the legislature had conferred on the Majlis to
make rules regulating the procedure and qualifications for admission of
peguam syarie;
(d) the amendment to s 59(1) of the Act did not alter the meaning of the
F
words ‘any person’ in s 59(1) or curtail the power of the Majlis to admit
any person having sufficient knowledge of Islamic law as a peguam syarie.
The amendment, in fact, widened the powers of the Majlis to admit a
peguam syarie. The word ‘persons’ in the original s 59(1) had been
amended to ‘any person’ in the amended s 59(1), whilst a new sub-s (3) G
widened the power of the Majlis by allowing it to exempt any member of
the judicial and legal services or any person appointed under s 3 of the
Legal Aid Act 1971 from the provisions of s 59 of the Act. Thus any such
person could appear in the Shariah Court on behalf of any party upon
being granted the exemption by the Majlis; H
(e) the words ‘any person’ in s 59(1) of the Act included any person
regardless of his religion. The Act did not close the doors for
non-Muslims having sufficient knowledge of Islamic law to appear in
the Shariah Court. If the intention and purpose of s 59 of the Act was to
I
admit only Muslims having sufficient knowledge of Islamic law as a
peguam syarie, the legislature would, instead of using the words ‘any
person’, have used the words ‘any Muslim’ or words to that effect in s
59(1); and
A (f) the rule of construction is ‘to intend the Legislature to have meant what
they have actually expressed’. The intention of Parliament must be
deduced from the language used. The duty of the court is to expound the
language of the Act in accordance with the settled rules of construction.
The court has nothing to do with the policy of any Act, which it may be
B called upon to interpret. The onus of showing that the words do not
mean what they say lies heavily on the party who alleges it. He must
advance something which clearly shows that the grammatical
construction would be repugnant to the intention of the Act or lead to
some manifest absurdity. In the instant appeal, the Majlis and the
C
attorney general had not convinced the Court of Appeal that it was the
clear intention of the Act to admit only Muslims with sufficient
knowledge of Islamic law as peguam syarie.
AT THE FEDERAL COURT

D
[14] On 28 January 2014, the Majlis and the attorney general were given
leave by this court to appeal against the decision of the Court of Appeal on the
following question of law which reads:
E Whether that part of Rule 10 of the Peguam Syarie Rules 1993 PU(A)408/1993
mandating that only Muslims can be admitted as peguam syarie is ultra vires the
Administration of Islamic Law (Federal Territory) Act 1993. (The Ultra Vires
Question)
F [15] On 2 February 2015, this court during the course of submission on the
ultra vires question had requested the parties to put in and also submit an
additional question which reads:
Whether that part of Rule 10 of the Peguam Syarie Rules 1993 PU(A)408/1993
G mandating that only Muslims can be admitted as peguam syarie is in contravention
of Article 8(1) and/or Article 8(2) and/or Article 5 and/or Article 10(1)(c) of the
Federal Constitution and is as a consequence void. (The Constitutional Question)
[16] Thus, in order to understand the reasonings of the courts below and the
H submissions of the parties on these issues, it is necessary to reproduce s 59 of the
Act as well as r 10 of the Rules. Section 59 of the Act reads:
59 Peguam syarie –
(1) Subject to subsection (2), the Majlis may admit any person having
sufficient knowledge of Islamic Law to be peguam syarie to represent
I
parties in any proceedings before the Syariah Court.
(2) The Majlis may, with the approval of the Yang di-Pertuan Agong, make
rules-
(a) to provide for the procedure, qualifications and fees for the admission
of peguam syarie; and A

(b) to regulate, control and supervise the conduct of peguam syarie.
(3) Notwithstanding subsection (1), the Majlis may exempt any member of the
Judicial and Legal Service of the Federation or any person appointed under
section 3 of the Legal Aid Act 1971 from the provisions of this section. B
(4) Notwithstanding anything contained in any other written law, no person
other than peguam syarie or a person exempted under subsection (3) shall be
entitled to appear in any Syariah Court on behalf of any party to any proceedings
before it.
C
[17] The Majlis in exercise of its powers under s 59(2) of the Act had, in
1993 passed the Rules. Rule 10 of the Rules provides as follows:
10 A person may be admitted to be a peguam syarie if he –
D
(a)
(i) is a Muslim and has passed the final examinations which leads to the
certificate of a bachelor’s degree in Syariah from any university of any
Islamic educational institution recognised by the Government of
Malaysia; or E
(ii) is a Muslim member of the judicial and legal service of the Federation;
or
(iii) is a Muslim advocate and solicitor enrolled under the Legal Profession
Act 1976; or
F
(iv) has served as a Syariah Judge or as a Kathi with any State Government
in Malaysia for a period of not less than seven years;
(b) has attained the age of twenty-one years;
(c) is of good behavior and –
G
(i) has never been convicted in Malaysia or in any other place of any
criminal offence;
(ii) has never been adjudged bankrupt;
(d) is a Malaysia citizen; and H
(?) as an advocate and solicitor, has passed the Sijil Peguam Syarie examination.
THE ULTRA VIRES QUESTION
[18] In addressing this question, the issue before us is whether that part of r I
10 of the Rules which imposes a condition that only a Muslim can be admitted
and be allowed to practice as a peguam syarie is ultra vires s 59(1) of the Act.
Learned counsel for the Majlis contended that the legislature in its wisdom had
delegated the power to the Majlis to make rules regarding the qualifications of
A a person for admission as a peguam syarie, as the Majlis is the proper body
entrusted under the Act to advise the Yang Di-Pertuan Agong on matters
relating to the religion of Islam (see s 4(1) of the Act).
[19] A stance has been taken by the Majlis and the attorney general that s
B 59(1) is not the conclusive provision for the definition of peguam syarie.
Learned counsel for the Majlis highlighted that s 59(1) begins with the opening
words ‘subject to sub-s (2)’. In clear plain language, the provision must be read
subject to sub-s (2). It means that the discretion of the Majlis to admit any
person with sufficient knowledge of Islamic Law to be peguam syarie is subject
C to sub-s (2). It does not stand alone without condition. In its plain language s
59 itself clearly states that both the sub-s (1) and (2) must be read together, to
determine the qualifications to become peguam syarie. Hence, according to
learned counsel, to state that r 10 cannot go beyond the only qualification of
sufficiency of knowledge in itself not only goes against what s 59(1) says, but
D also completely ignores the actual constitutional and legal reason why the other
qualifications to become peguam syarie are left to the Majlis to make rules
adding in to the other necessary qualifications.
[20] What was submitted above, is in line with the reasonings given by the
E
learned High Court judge in holding that r 10 of the Rules is not ultra vires s
59(1) of the Act. The learned High Court judge in holding that r 10 is not ultra
vires s 59(1) the Act held:
[15] For the purpose of appreciating the application of rule 10 in relation to s 59(1)
F of Act 505, it is crucial to determine the ambit and the language used in the section.
It must be noted that s 59(1) begins with the opening words ‘subject to subsection
(2), the Majlis may admit any person with sufficient knowledge of Islamic Law to be
peguam syarie … ’. In clear plain language, the provision must be read subject to
sub-s (2). It means that the discretion of the Majlis to admit any person with
sufficient knowledge of Islamic Law to be peguam syarie is subject to sub-s (2). It
G does not stand alone without condition.
[16] To my mind ‘admission’ is at the discretion of the Majlis because the word ‘may’
is used in s 59(1) of Act 505. The word ‘may admit’ denotes that it is not mandatory
for the Majlis to admit a person solely on the basis of having sufficient knowledge of
Islamic Law. In my view this provision must be read to mean that the Majlis in
H
exercising its discretion is subject to the rules made under sub-s (2). So even if a
person has sufficient knowledge of Islamic law, the Majlis may still decline an
application for admission on other grounds and this could be for reasons stipulated
in sub-s (2).
I [17] From my reading of these provisions the intent of the legislature is clear. In
plain language of this provision alone I am unable to agree with the contention by
Encik Ranjit Singh that, the words ‘a person with sufficient knowledge of Islamic
law’ is all that is required for the purpose of admission under s 59(1). Such cannot
be what s 59(1) contemplates. It is also clear that it is the intent of the legislature to
delegate to the Majlis the power to determine the necessary qualification at its
discretion. Hence the Majlis is empowered to add, vary or to limit the said A
qualification. Whether or not the imposition of the requirement that a person must
be a Muslim is within the power of Majlis must therefore depend on the meaning of
the word qualification used in that section. If the legislature had intended that
knowledge of Islamic law per se is sufficient then s 59(1) would have been enacted
to read instead, ‘The Majlis shall admit any person having sufficient knowledge of B
Islamic Law … ’. Since the opening words of s 59(1) begin with ‘subject to sub-s (2)’,
it is clear that the qualification of a person with sufficient knowledge of Islamic Law
in that s 59(1) is subject to the power given to the Majlis in subsection (2). That
being the case, I hold that the Majlis is empowered by virtue of s 59(2) to regulate
the qualification of a peguam syarie.
C
[21] In response, learned counsel for the respondent submitted that r 10 of

the Rules is ultra vires the Act and that it has exceeded the limits prescribed by
the Act by creating an inconsistency with it. On this basis learned counsel
submitted that the Court of Appeal rightly held that the usage of the word ‘any D
person’ in s 59(1) of the Act in their natural meaning must mean any person,
regardless of his or her religion. Learned counsel drew our attention to the fact
that there is nothing in the Act to restrict the meaning of the words ‘any person’
to mean ‘any Muslim’. Thus, any person, with sufficient knowledge of Islamic
law may under s 59(1) be admitted as a peguam syarie at the discretion of the E
Majlis. Learned counsel submitted that the words ‘subject to sub-s (2)’ in s
59(1) of the Act cannot be relied on to validate r 10 of the Rules, as what the
learned High Court judge did in this case. Learned counsel took a diametrically
opposed view in that s 59(1) of the Act imposes only one condition to become
peguam syarie, that is a person must have ‘sufficient knowledge of Islamic law’. F
Learned counsel’s stance is that the Rules was delegated to provide for the
procedure, qualifications and fees for admission of peguam syarie. Being a
delegated legislation, the Rules must fall within the scope of the power granted
to it by the Act. In other words, delegated legislation cannot impose rules
which are not authorised by the parent statute. In this regard it was submitted G
that the Court of Appeal had correctly analysed the interplay between the two
sections when it concluded as follows:
The phase, ‘Subject to subsection 2’ in section 59(1) of the Act does not make
section 59(1) subservient to section 59(2) as contended by the Respondents. This is
because 59(2) itself does not take away or curtail the power of the Majlis to admit H
any person having sufficient knowledge of Islamic law as a peguam syarie. Section
52(2) is merely an enabling provision, which the legislature has conferred on the
Majlis to make rules, with the approval of the Yang di Pertuan Agong, regulating the
procedure and qualification for admission of peguam syarie.
I
[22] Learned counsel was of the view that the phase ‘subject to sub-s (2)’ is
merely an enabler, enabling the Majlis to make rules pursuant to the said
provision. The rules must, however, never be inconsistent with the main Act.
The useage of the term ‘Muslim’ in r 10 is clearly a departure from the general
A term ‘any person with sufficient knowledge of Islamic law’ used in the Act, and
therefore is ultra vires the Act. In support learned counsel cited s 23(1) of the
Interpretation Act 1948 and 1967 which reads as follows:
Any subsidiary legislation that is inconsistent with an Act (including the Act under
which subsidiary legislation was made) shall be void to the extent of the
B
inconsistency.
[23] As we can see, clearly there is a sharp differing view as to the

interpretation of the words ‘subject to sub-s (2)’ in s 59(1) of the Act.
C
[24] We are of the view that the words ‘subject to’ means conditional or
dependent upon something. It implies that the application of s 59(1) of the Act
is conditional and dependent upon the provision in s 59(2). In other words, as
found by the learned High Court judge, s 59(1) does not stand alone on its own
D and must not be read on its own. Thus, the term ‘subject to’ is not merely an
enabler as what had been ruled by the Court of Appeal. Rather, it complements
the provision under s 59(2) of the Act. The application of s 59(1) of the Act will
have to be subjected to the provisions under s 59(2). Thus, in our considered
view the words ‘subject to’ must be a factor to be considered in interpreting any
E section in a statue.
[25] We found support for our view based on the decision of this court in
Perbadanan Kemajuan Kraftangan Malaysia v DW Margaret a/p David Wilson
F
(t/a Kreatif Kraf ) [2010] 2 MLJ 713; [2009] 4 MLRA 265. Her Ladyship
Heliliah Yusof FCJ speaking for the Federal Court had this to say:
In the instant appeal there is only one section. Nevertheless while undue emphasis
has been emplaced on the word ‘may’ in s 35 of the PKKM Act 1979 and the term
‘intention of the legislature’, scant regard has been paid to the opening words that
G also govern the application of the rest of the provision. The words that require to be
addressed are: Notwithstanding the provisions of any other written law.
[26] In the above case, the Federal Court regarded the opening words
‘notwithstanding the provisions of any written law’ as a factor to be considered
H in interpreting a statue. In fact, it went on to state that the opening words
govern the application of the rest of the provision.
[27] Similarly, in the present case, the term ‘subject to’ in the beginning of s
59(1) is not merely an enabler, but is an important part of the provision which
I may determine the manner in which the provision is to be read and construed.
Thus, the term ‘any person having sufficient knowledge of Islamic law’ as
found in s 59(1) is meant to be read subject to the powers of the Majlis
pursuant to s 59(2) to make rules to provide for the procedures, qualifications
and fees for the admission of peguam syarie in Wilayah Persekutuan.
[28] Although s 59(1) of the Act has provided a general condition that ‘any A
person with sufficient knowledge of Islamic law’ is eligible to become a peguam
syarie, s 59(2) of the Act assigns the responsibility of determining the
qualifications required for the admission as peguam syarie to the Majlis. Thus,
we are of the view that s 59(1) must be read harmoniously with s 59(2)(a) where
it clearly states the Majlis may make rules: B
(a) To provide for the procedures, qualifications and fees for the admission of
peguam syarie.
Clearly, s 59(2)(a) above cloths the Majlis with the power to make rules C
pertaining to ‘qualifications’ for the admission of a peguam syarie. The word
‘qualification’ is not defined in the Act, nor the Interpretation Act 1948 and
1967. Therefore, it must be given its ordinary and plain meaning as prescribed
in the English language. The learned High Court judge had dealt with this issue
in the following manner: D
[19] For the purpose of determining the meaning of qualification in s 59(1), I am

inclined to accept the submission of learned senior federal counsel that in absence of
the definition of qualification in Act 505 or in the Interpretation Acts 1948 and
1967, the plain and ordinary meaning of the word is to be used, as decided in Chin E
Choy & Ors v Collector of Stamp Duties [1979] 1 MLJ 69. The dictionary meaning
of word qualification are enumerated in the written submission of learned senior
federal counsel. First, the meaning found in the Concise Oxford English Dictionary,
(11th Ed), which states as this:
Qualification: 1. The action of qualifying or the fact of becoming qualified. 2. a F
pass of an examination or an official completion of course. 3. a quality that
qualifies someone for a job or activity. 4. a condition that must be fulfilled before
a right can be acquired. 5. a statement or assertion that qualifies another.
Black’s Law Dictionary, (9th Ed), qualification means: Qualification: (16c) 1.
The possession of qualities or properties (such as fitness or capacity) inherently G
or legally necessary to make one eligible for a position or office, or to perform a
public duty or function <voter qualification requires one to meet residency, age,
and registration requirement. (Cases: Officers and Public Employees 35.) 2. A
modification or limitation of terms or language; esp., a restriction of terms that
would otherwise be interpreted broadly <the contract container a qualification
requiring the lessor’s permission before exercising the right to sublet> 3. H
CHARACTERIZATION (I) -qualify, vb.
[20] In summary the word qualification or kelayakan as used in s 59(2) is wide
enough to include the possession of qualities or properties such as fitness or capacity
which is inherently or legally necessary to enable one to be eligible for a position or I
office. This includes modification or limitation or restriction or even
characterization. The same meaning is found in the P Ramanatha Aiyar’s, The Law
Lexicon With Legal Maxim, Latin Terms and Words & Phrases, (2nd Ed) 1977.
Therefore in its plain and ordinary meaning the word, qualification is certainly wide
enough to allow the Majlis to impose the condition appearing in r 10.
A [29] We are in complete agreement with the approach taken by the learned
High Court judge. We share the same view as the learned High Court judge
that the word ‘qualifications’ used in s 59(2) is wide enough to enable the Majlis
to impose the conditions appearing in r 10 of the Rules. As such, with respect,
we find that the respondent’s contention is untenable. As we have said earlier,
B s 59 of the Act cannot be interpreted by ignoring the plain and ordinary words
employed therein, wherein the opening words in s 59(1) of the Act clearly states
‘Subject to sub-s (2), the Majlis may admit any person having sufficient
knowledge of Islamic law to be peguam syarie … ’.
C
[30] Hence, to state that r 10 cannot go beyond the only qualification of
sufficiency of knowledge of Islamic law on itself not only goes against what s
59(1) of the Act says, but also completely ignores the legal reasoning why the
other qualifications to become peguam syarie are left to the Majlis to make
D adding on the other necessary qualifications.
[31] The fallacy of the respondent’s argument lies in the fact that undue
emphasis had been placed on the word ‘any person having sufficient knowledge
of Islamic law’ and scant regard has been paid to the opening words of s 59(1)
E of the Act where the rest of the provisions come into play through the usage of
the word ‘subject to’. As we have alluded to, s 59(1) of the Act is a general
enabling legislation establishing the right of a peguam syarie to appear in the
Syariah Courts. Section 59(2) on the other hand enables certain categories of
officers who fulfils the prerequisites based on the Rules enacted by the Majlis to
F appear. Section 59(1) does not give exclusive right to anyone to appear as
peguam syarie but rather subject to the restrictions in s 59(2). Section 59(2) of
the Act carves out a limited exemption in so far as it limits the class of persons
who are competent to appear as peguam syarie. The words ‘subject to sub-s (2)
of this Act’ are naturally words of restriction. They assume an authority
G immediately given and give a warning that elsewhere a limitation upon that
authority will be found. This line of statutory interpretation has been given
judicial consideration in the case of Government of the Federation of Malaya v
Surinder Singh Kanda [1961] 1 MLJ 121. Neal J in referring to the words of
Maugham J, in Re Dunkley v Sullivan [1930] 1 Ch 84 where he held that the
H words, ‘subject to the provisions contained in the will’, must mean ‘subject to all
the provisions of the will which remain operative and effective’. (Emphasis added.)
[32] Taking cue from the judgment of Neal J in Government of the Federation
of Malaya v Surinder Singh Kanda we find that the Court of Appeal in the
I instant case had fallen into error when it wrongfully concluded that the phrase
‘subject to sub-s (2)’ in s 59(1) of the Act did not make s 59(1) subservient to
s 59(2) because s 59(2) itself did not take away or curtail the power of the Majlis
to admit any person having sufficient knowledge of Islamic law as a peguam
syarie and s 59(2) was merely an enabling provision which the legislature had
conferred on the Majlis to make rules regulating the procedure and A

qualification for admission of peguam syarie .
[33] We are inclined to agree with the views accorded by the learned High
Court judge in that the conditions for admission of peguam syarie in s 59(1) can
be referred to in simple language as ‘necessary condition’, but not ‘sufficient B
condition’ to qualify the person as a peguam syarie for the purpose of s 59 of the
Act. The ‘sufficient condition’ would be satisfied if the person meets the further
requirements under r 10 of the Rules, which was enacted pursuant to s 59(2) of
the Act. Thus, the additional qualifications required by the Majlis under r 10,
C
read together with the qualification of ‘any person with sufficient knowledge of
Islamic law’ appearing in s 59(1) of the Act, would then complete the definition
as to who may be appointed as a peguam syarie for the purposes of the Act.
[34] In the circumstances, we are unable to accede to the contentions urged D

upon us by learned counsel for the respondent that ‘a person with sufficient
knowledge of Islamic law’ is all which is required for the purpose of admission
under s 59(1) of the Act. For the reasons stated earlier, clearly such cannot be
what s 59(1) contemplates. It is pertinent to note that the qualification under
r 10 of the Rules is not limited to merely the faith of the person as a Muslim. E
Rule 10 also provides other conditions such as the minimum age of 21 years,
record of no conviction of criminal offence, record of solvency, a Malaysian
citizen, an advocate and solicitor, and a condition of having passed the Sijil
Peguam Syarie examination. With respect, if going by the contention of learned
counsel for the respondent that the Majlis cannot prescribe the faith of a person F
to be a Muslim to be a peguam syarie, then surely what the respondent is saying
is that the Majlis also cannot prescribe other conditions which appear in r 10 of
the Rules. Thus, to interpret ‘any person having sufficient knowledge of Islamic
law’ in s 59(1) of the Act, as the only requirement to be admitted as peguam
G
syarie would be repugnant to the intention of the Act and lead to some manifest
absurdity.
[35] Based on the aforesaid reasons, we find that, that part of r 10 of the
Rules mandating that only Muslims can be admitted as peguam syarie is not H
ultra vires s 59(1) of the Act. We shall therefore answer this question posed in
the negative.
THE CONSTITUTIONAL QUESTION

I
[36] Rule 10 of the Rules provides for the qualifications of a peguam syarie.
The issue is whether r 10 of the Rules, mandating that only Muslims can be
admitted as peguam syarie is in contravention of art 8(1) and/or art 8(2) and/or
artt 5 and/or art 10(1)(c) of the Federal Constitution.
A [37] In addressing this issue, learned counsel for the Majlis submitted that r
10 of the Rules cannot be read subject to the liberty clauses under the Federal
Constitution. To exemplify this contention learned counsel stressed that most
states enactments and/or rules contain provisions restricting and/or limiting
any acts and conducts of any individual Muslim professing the religion of Islam
B which is contrary to the precept of Islam. As such, learned counsel advocated
that a harmonious rule of interpretation must be applied in interpreting the
Federal Constitution. In other words, those enactments on Islamic Law passed
by the states must be taken for all intent and purposes not to be subjected to the
liberty clauses. Otherwise, learned counsel submitted, those intended powers
C
of the states to enact Islamic laws would be resigned to redundancy. Learned
counsel referred to the cases of Merdeka University Bhd v Government of
Malaysia [1981] 2 MLJ 356 and Dato Menteri Othman bin Baginda & Anor v
Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 as authorities to support
D his proposition.
[38] On the discrimination point under art 8 of the Federal Constitution,

learned counsel for the Majlis submitted that art 8(1) of the Federal
Constitution does not preclude the making of reasonable classification of
E categories, so long as there is no discrimination among the members of that
category. The object of the Act is to enforce and administer Islamic Law, the
constitution and organisation of the Syariah Courts. If the Legislature deems it
necessary that for the purpose of achieving the object of Act, it requires a rule
that only a Muslim may be admitted as peguam syarie, and that rule is made
F directed to the problem and that it discriminates on adequate grounds, then
the law does not violate art 8 of the Federal Constitution. It is therefore good
law (see Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia,
Intervener) [2004] 2 MLJ 257).
G [39] In relation to art 5(1) of the Federal Constitution, learned counsel’s

bone of contention is that by applying the principle stated in the cases of
Government of Malaysia & Anor v Selangor Pilot Association [1977] 1 MLJ 133
and S Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors
[1982] 1 MLJ 204, the fundamental right under art 5(1) of the Federal
H Constitution is not absolute and this right can be taken away by law duly
passed by Parliament. Thus, r 10 of the Rules is therefore valid law (see also
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72).
[40] In addressing the equality provisions under the Federal Constitution,

I learned counsel for the respondent emphasised on the fact that a law that
discriminates is good law if it is based on reasonable or permissible
classification. The test for ‘reasonable classification’ is that the classification
must be founded on an intelligible differentia which distinguishes those that
are grouped together from others and that differentia must have a rational
relation to the object sought to be achieved by the Act (see case of Datuk Haji A
Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155).
[41] Anchored on the above authority, learned counsel for the respondent
emphasised that the classification thus must not be arbitrary, artificial or evasive
but must be based on some real and substantial distinction bearing a just and B
reasonable relation to the object sought to be achieved by the Legislature. What
is necessary is that there must be a nexus between the basis of classification and
the object of the law in question.
C
[42] Having discussed the above principles on discrimination at length,
learned counsel for the respondent concluded by stating that the imposition
that peguam syarie can only be Muslims has no nexus to the object of the Act.
Having a peguam syarie who are non Muslims does not detract from nor is it
inconsistent with the enforcement of the administration of Islamic Law or the D
organisation of Syariah Courts. The object of s 59(1) of the Act is to ensure
competency in Islamic law to practice as a peguam syarie. It is all about academic
knowledge and not a person’s religious faith. In the circumstances, learned
counsel submitted that the prohibition against non-Muslims for admission as
a peguam syarie is therefore arbitrary and unreasonable. E
[43] In the instant case the High Court held that r 10 of the Rules was not
in contravention with the liberty and equality clauses under the Federal
Constitution. The Court of Appeal did not rule on this issue. It is for that
F
reason we invited parties to pose this constitutional question in order to avoid
the case being send back to the Court of Appeal to decide on this issue later if
the Majlis and the attorney general succeeded on the ultra vires question.
[44] We will first deal with art 8 of the Federal Constitution which provides G
as follows.
Equality
8 (1) All persons are equal before the law and entitled to the equal protection of the
law.
H
(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,
I
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
A 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 (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
C 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
D 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.
E
[45] The law on art 8 of the Federal Constitution is settled. A law that
classification. The governing principles of law on art 8 of the Federal
Constitution was succinctly laid down in the case of Datuk Haji Harun bin
F Haji Idris v Public Prosecutor [1977] 2 MLJ 155 where His Lordship Suffian
LP in referring to the Indian Supreme Court case of Shri Ram Krishna Dalmia
v Shri Justice SR Tendolkar & Ors AIR 1958 SC 538, held that a law that
classification. Two conditions must be satisfied, that is:
G
(a) the classification is founded on an intelligible differentia which
distinguishes persons that are grouped together from others left out of the
group; and
(b) the differentia has a rational relation to the object sought to be achieved
H by the law in question. The classification may be founded on different
bases such as geographical, or according to objects or occupations and the
like. What is necessary is that there must be a nexus between the basis of
classification and the object of the law in question.
I [46] The doctrine of reasonable classification has been accepted and applied
by our courts in the cases of Public Prosecutor v Khong Teng Khen & Anor
[1976] 2 MLJ 166, Abdul Ghani bin Ali Ahmad & Ors v Public Prosecutor
[2001] 3 MLJ 561; [2001] 3 CLJ 769, Danaharta Urus Sdn Bhd v Kekatong
Sdn Bhd (Bar Council Malaysia, Interverner) [2004] 2 MLJ 257, Badan Peguam
Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285; [2008] 1 CLJ 521, Lee A
Kwan Woh v Public Prosecutor [2009] 5 MLJ 301; [2009] 5 CLJ 631 and
Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333; [2010]
3 CLJ 507. In fact in the very recent case of Lembaga Minyak Sawit Malaysia v
Arunamari Plantation Sdn Bhd & Ors and Another Appeal [2015] 4 MLJ 701;
[2015] 5 MLRA 1 this court in referring to the case of Datuk Haji Harun bin B
Haji Idris v Public Prosecutor [1977] 2 MLJ 155 had this to say:
[43] It is given that art 8 of the Constitution guarantees that all persons are equal
before the law and entitled for equal protection of the law. The jurisprudence
relating to art 8 of the Constitution has been aptly discussed and summarised in the C
case of Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155. In
that case one of the issues raised was that s 418 of the Criminal Procedure Code
(under the provisions of which the case was transferred from the subordinate court
to the High Court for trial) was inconsistent with art 8 of the Constitution and
therefore void by virtue of art 4. Suffian LP, in dealing with this issue, had laid down
the principles of equality in the Malaysian context in this way: D
1. The equality provision is not absolute. It does not mean that all laws
must apply uniformly to all persons in all circumstances everywhere.
2. The equality provision is qualified. Specifically, discrimination is
permitted within cl (5) of art 8 and art 153. E
3. The prohibition or unequal treatment applies not only to the legislature
but also to the executive – this is seen from the use of the word ‘public
authority’ in cl (4) and ‘practice’ in clause (5)(b) of art 8.
4. The prohibition applies to both substantive and procedural law. F
5. Article 8 itself envisages that there may be lawful discrimination based
on classification – thus Muslims as opposed to non-Muslims (para (b) of
cl (5) of art 8); aborigines as opposed to others (para c)); residents in a
particular State as opposed to residents elsewhere (para d)); and Malays
and natives of Borneo as opposed to others who are not (art 153). G
6. … the first question we should ask is, is the law discriminatory, and that
the answer should then be – if the law is not discriminatory, if for instance
it obviously applies to everybody, it is good law, but if it is discriminatory,
then because the prohibition of unequal treatment is not absolute but is
either expressly allowed by the Constitution or is allowed by judicial H
interpretation we have to ask the further question, is it allowed? If it is, the
law is good, and ifit is not, the law is void.
7. … discriminatory law is good law if it’s based on ‘reasonable’ or
‘permissible’ classification, using the words used in the passage reproduced
the judgment in Shri Ram Krishna Dalmia v Shri Justice SR Tendolkar & I
Ors [1958] AIR 538, provided that:
(i) the classification is founded on an intelligible differentia which
distinguishes persons that are grouped together from others left out of the
group; and
A (ii) the differentia has a rational relation to the object sought to be

achieved by the law in question. The classification may be founded on
different bases such as geographical, or according to objects or
occupations and the like. What is necessary is that there must be a nexus
between the basis of classification and the object of the law in question.
B 8. Where there are two procedures existing side by side, the one that is more
drastic and prejudicial is unconstitutional if there is in the law no guideline as to
the class of cases in which either procedure is to be resorted to. But it is
constitutional if the law contains provisions for appeal, so that a decision under
it may be reviewed by a higher authority. The guideline may be found in the law
C itself; or it may be inferred from the objects and reasons of the bill, the preamble
and surrounding circumstances, as well as from the provisions of the law itself.
The fact that the executive may choose either procedure does not in itself affect
the validity of the law …
9. In considering art 8 there is a presumption that an impugned law is
D constitutional, a presumption stemming from the wide power of classification
which the legislature must have in making laws operating differently as regards
different groups of persons to give effect to its policy.
10. Mere minor differences between two procedures are not enough to invoke
E the inhibition of the equality clause.
[44] The jurisprudence relating to art 8 of the Constitution was further propounded
in the case of Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165.
There, Salleh Abas LP in his dissenting judgment stated as follows at pp 722–723:
The requirement for equal protection of the law does not mean that all laws
F passed by a legislature must apply universally to all persons and that the law so
passed cannot create differences as to the persons to whom they apply and the
territorial limits within which they are in force. Individuals in any society differ
in many respects such as, inter alia, age, ability, education, height, size, colour,
wealth, occupation, race and religion. Any law made by a legislature must of
G necessity involve the making of a choice and differences as regards its application
in terms of persons, time and territory. Since the legislature can create
differences, the question is whether these differences are constitutional. The
answer is this: if the basis of the difference has a reasonable connection with the
object of the impugned legislation, the difference and therefore the law which
contains such provision is constitutional and valid. If on the other hand there is
H no such relationship the difference is stigmatised as discriminatory and the
impugned legislation is therefore unconstitutional and invalid. This is known as
the doctrine of classification which has been judicially accepted as an integral
part of the equal protection clause. Its classic rendering is well summarised in
Lindley v National Carbonic Gas Co [1911] 220 US 61, pp 76–79, 55 L Ed 369
I (this case should be cited as Lindley v Natural Carbonic Gas Co), in the following
terms:
1. The equal protection clause of the 14th amendment does not take from
the state the power to classify in the adoption of police laws, but admits of
the exercise of a wide scope of discretion in that regard, and avoids what is
done only when it is without any reasonable basis, and therefore is purely A
arbitrary.
2. A classification having some reasonable basis does not offend against
that clause merely because it is not made with mathematical nicety or
because in practice it results in some inequality.
B
3. When the classification in such a law is called in question, it any state of
facts reasonably can be conceived that would sustain it, the existence of
that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the burden of
showing that it does not rest upon any reasonable basis, but is essentially C
arbitrary.
[47] From the above cases, it is trite law that classification for the purpose of
discrimination is permissible. However, the classification must have rational D
relation to the object sought to be achieved by the law in question for it to
become a valid law. Whether a particular classification is rational or not, it is
necessary to look at the object and intent of such laws and the Rules drafted
thereunder.
E
[48] In the context of the present case, in order to appreciate the real intent
and object of the law, it is crucial to look at the whole scheme of the Act. It is
clear that the object of the Act is to enforce and administer Islamic law as well
as to provide for the constitutional and organisation of the Syariah Court. It is
a common ground that the Syariah Court has jurisdiction only over persons F
professing the religion of Islam. Hence, the persons appearing before the
Syariah Court therefore should also be subjected to its jurisdiction. The Syariah
Court must be able to enforce its laws and rules on a peguam syarie, as for
instance, when contempt or any breach of the rules is committed by any party.
Surely, the Syariah Court would not be able to enforce its laws and rules against G
the respondent, as she a non-Muslim. The Syariah Court has no jurisdiction
against her.
[49] The High Court judge in addressing this issue made the following
observation: H
The laws are therefore made directed to the problem, manifests by experience and
that it discriminates on adequate grounds. Thus, if the Legislature deems it
necessary that for the purpose of achieving the object of Act 505, it requires a rule
that only a Muslim may be admitted as peguam syarie and that rule is made directed
to a problem, manifest by experience and that it discriminates on adequate ground, I
then the law does not violate Art 3 of the Federal Constitution. It is therefore a good
law.
[50] We are incline to agree with the observation made by the learned High
A Court judge. As we have stated earlier, the object of the Act relates to the
enforcement and administration of Islamic Laws, the constitution and
organisation of Syariah Courts and related matters in Wilayah Persekutuan.
The enforcement and the organisation of the Syariah Court include having
competent and qualified prosecutors and religious enforcement officers and
B legal representation by qualified peguam syarie. The Majlis in exercising its
delegated power made rules, inter alia , that only a Muslim may be admitted as
peguam syarie. The power to legislate based on the empowering provision and
the broad meaning of the word qualification allows the Majlis to impose a
condition that only a Muslim may be admitted as peguam syarie. Thus, if the
C
legislature deems it necessary that for the purpose of achieving the object of
Act, it requires a rule that only a Muslim may be admitted as peguam syarie and
that rule is made directed to the problem, and it discriminates on adequate
grounds, then the law does not violate art 8 of the Federal Constitution. It is
D therefore a good law.
[51] Further having a peguam syarie who professes the religion of Islam is
important to achieve the object of the Act. Faith here being the cornerstone is
necessary to achieve the object of the Act. It must be noted that one of the
E important duties of a peguam syarie is to assist the Syariah Court in upholding
the Syariah Law. First and foremost, the profession is based on the concept of
Islamic belief in Allah. One of the most important criteria which makes an
upright and virtuous peguam syarie is for the lawyer to have ‘Aqidah’, which
means belief with certainty and conviction in one’s heart and soul in Allah and
F His divine Law. Thus, from the perspective of Syariah, it is fundamentally
crucial for peguam syarie to be selected among the Muslims and only those who
have faith in the religion of Islam and who are able to perform their duties with
full conviction of that belief. With due respect to the respondent, she is of the
Christian faith. Her faith is surely in conflict with the Muslim ‘Aqidah’. In that
G sense, how is she to fulfill her duty to assist the Syariah Court in upholding the
Syariah Law?
[52] Thus, in our judgment we find that the classification can be regarded as
reasonable as there is nexus between the impugned rule and the object of the
H Act. It is therefore our considered view that the impugned r 10, does not
contravene art 8 of the Federal Constitution and is therefore not
unconstitutional.
[53] It was also submitted by learned counsel for the respondent that r 10 of
I the Rules, which imposes a restriction that a person must be a Muslim in order
to become a peguam syarie render her fundamental right to livelihood under art
5 of the Federal Constitution ineffective or illusory. Further, it was submitted
that r 10 of the Rules is unconstitutional since it infringes art 10(1)(c) of the
Federal Constitution.
[54] The High Court in dealing with these issues held as follows: A
[42] Though art 5 and art 10 of the Federal Constitution were raised by the
applicant, however these two areas of the Constitution were not central to the
challenge posed by the applicant. For completeness however, on art 5 the Federal
Court case of Abdul Aziz bin Mohd Alias v Timbalan Ketua Polis Negara, Malaysia &
Anor [2010] 4 MLJ 1; [2010] 3 CLJ 643 has erased doubts on the meaning of the B
right to life in art 5(1).
The Federal Court uses the definition of ‘life’ in Pihak Berkuasa Negeri Sabah v
Sugumar Balakrishnan 9 MLJ 194 at 212 [2002] 3 MLJ 72;; [2002] 4 CLJ 105, to
exclude the right to livelihood. Thus the allegation by the applicant on the loss of C
the livelihood is misplaced because the applicant is not deprived to practice her
profession as an advocate and solicitor in the civil court. The relationship between
art 5(1) and art 8(1) is best summed up in Sivarasa Rasiah b Badan Peguam Malaysia
& Anor [2010] 2 MLJ 333; [2010] 3 CLJ 507 as this:
… it is clear from the authorities thus far discussed that ‘in accordance with law’ D
in art 5(1) refers to a law that is fair and just and not merely any enacted law
however arbitrary or unjust it may be. So long as the law does not produce any
unfair discrimination it must be upheld. This is the effect of the equality limb art
8(1) … if s 46A passes the test of the fairness as housed in the equality clause then
it is a fair law and therefore is a valid law for the purposes of art 5(1) … E
[55] We cannot help but agree with the observations made by the learned
High Court judge. With respect, the issue on the deprivation of the
respondent’s livelihood is misplaced as based on the facts of this case the
F
respondent is not deprived of her law practice in the civil court.
[56] We are also of the view that the respondent’s reliance on art 10(1)(c) is
without any merit. Article 10(1)(c) provides:
(1) Subject to Clauses (2), (3) and (4) – G
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without arms;
(c) all citizens have the right to form associations.
H
[57] It is clear that art 10(1)(c) refers specifically to the ‘right to form
associations’, and not to the right to be a member of any profession or
association. Thus, the respondent’s reliance on art 10(1)(c) is also misplaced.
I
[58] Based on the forgoing, we hold that r 10 of the Rules mandating that
only Muslim can be admitted as peguam syarie is not in contravention with arts
5, 8(1) and 10(1)(c) of the Federal Constitution. We shall therefore answer the
question posed in the negative.
[2016] 2 MLJ Martin and another appeal (Suriyadi FCJ) 341
A CONCLUSION
[59] In the final analysis, we find that r 10 of the Rules mandating that only
Muslims can be admitted as peguam syarie is not ultra vires the Act. Further,
that part of r 10 of the Rules mandating that only Muslims can be admitted as
B peguam syarie, is not in contravention of arts 5, 8(1), or 10(1)(c) of the Federal
Constitution.
[60] For the reasons adumbrated above, we accordingly allow the appeals.
C The orders of the Court of Appeal are hereby set aside. We reinstate the orders
of the High Court. As agreed by the parties, we make no order as to costs.
Suriyadi FCJ (delivering dissenting judgment of the court):
D [61] The respondent is an advocate and solicitor of the High Court of

Malaya and a holder of Diploma in Syariah Law and Practice (‘DSLP’)
conferred by the International Islamic University Malaysia.
[62] She is a Christian.

E
[63] The Majlis Agama Islam Wilayah Persekutuan is a body incorporated
under the Administration of Islamic Law (Federal Territories) Act 1993 (Act
505) (‘the Act’), and is charged under s 59 of the Act with the power to admit
F syarie lawyers (‘peguam syarie’) to represent parties in any proceedings before
the Syariah Courts, in the Federal Territories (‘Wilayah Persekutuan’). Another
incidental appellant, the attorney general, represents Wilayah Persekutuan.
Thenceforth the Majlis Agama Islam Wilayah will be referred to as the
appellant unless stated otherwise.
G
[64] By a letter dated 24 August 2009 the respondent applied to be admitted
as a peguam syarie in Wilayah Persekutuan. However before her application was
processed, it was rejected by the ‘Jawatankuasa peguam syarie’, an entity under
the appellant’s jurisdiction, vide a letter dated 9 September 2009, on the
H ground that she is not a Muslim.
[65] On 23 October 2009, 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. In that declaratory prayer, the
I
respondent sought a declaration that kaedah 10 (r 10) of the Kaedah-Kaedah
Peguam Syarie 1993 is ultra vires the Act, and also in contravention of art 8(1)
and/or art 8(2) and/or art 5 and/or art 10(1) (c) of the Federal Constitution,
and as a consequence void.
[66] Hereinafter, any reference to an article refers to the Federal A

Constitution. For brevity any reference to ss 59(1) and (2) will relate to the Act.
[67] Chronologically, on 14 May 2010 leave for the judicial review

application was granted. The appellants’ application under O 18 r 19 of the
Rules of the High Court 1980 (‘the RHC’) to strike out the respondent’s B
application for that judicial review was dismissed on 17 March 2011. The High
Court judge dismissed the striking out application on jurisdictional grounds.
[68] The High Court also dismissed the respondent’s application for judicial C
review, on the ground that the appellant is empowered under s 59(2) to make
rules relating to the qualifications of admission of persons as peguam syarie,
including the power to impose the condition that a peguam syarie applicant
must be a Muslim.
D
[69] Being dissatisfied, the appellant appealed to the Court of Appeal on 25
May 2011. On 21 June 2013, the Court of Appeal allowed the respondent’s
appeal and declared that r 10 is ultra vires the Act.
[70] Dissatisfied with the decision of the Court of Appeal, the appellant E
applied for leave to the Federal Court. On 28 January 2014 the appellant
successfully obtained leave from us on the following questions of law:
(a) whether or not ‘kaedah 10’ (r 10) of the ‘Kaedah-Kaedah Peguam Syarie
1993 PU(A) 408/1993’ is ultra vires the ‘Administration of Islamic Law
F
(Federal Territories) Act 1993’ (the ultra vires question); and
(b) whether or not ‘kaedah 10’ of the ‘Kaedah-kaedah Peguam Syarie 1993
PU(A) 408/1993’ is in contravention of art 8(1) and/or art 8(2) and/or
art 5 and/or art 10(1)(c) of the Federal Constitution (‘the constitutional
question’) G
THE APPELLANT’S SUBMISSION
[71] The appellant began by submitting that s 59(1) is the empowering

section, and pursuant to s 59(2) of the Kaedah-Kaedah Peguam Syarie was H
promulgated. Rule 10 provides that only Muslims may be admitted as a peguam
syarie.
[72] The appellant submitted that by reading s 59(1) together with s 59(2),
in its plain and ordinary meaning, s 59 (1) is not the conclusive provision for I
the definition of peguam syarie. The powers given to the appellant to determine
the qualifications of a peguam syarie under s 59(1) must be read subject to s
59(2). It was submitted that the discretion of the appellant to admit any person
with sufficient knowledge of Islamic Law to be ‘peguam syarie’ is subject to that
A sub-s (2) and thus did not stand alone without condition.
[73] The appellant submitted that it is obvious that s 59(2)(a) empowers the
appellant to make rules pertaining to qualifications for the admission of
peguam syarie. Further, the word ‘qualifications’ is neither defined in the Act
B nor the Interpretation Acts 1948 and 1967. It was also pointed out by the
appellant that s 59(1) is only a ‘necessary definition’ section, but not a
‘sufficient definition’ section, of peguam syarie.
[74] It was submitted that r 10 will then complete the definition as to who
C
qualifies to be a ‘peguam syarie’ for purposes of the Act, ie the basis for rejecting
the respondent’s application for admission. In short her unsuccessful
application as a peguam syarie, on the premise that she is not a Muslim, is in
order.
D
[75] The appellant submitted that the learned judge of the High Court was
correct in deciding that s 59(1) must be read together with s 59(2). The
rationale behind the view is that s 59(1) begins with the opening words ‘subject
to sub-s (2), the Majlis may admit any person with sufficient knowledge of
E Islamic Law to be peguam syarie … ’. Learned counsel for the appellant
ventilated that due to the clear and plain language of s 59(1) it thus must be
read subject to s 59(2). In short, the discretion of the appellant to admit any
person with sufficient knowledge of Islamic Law to be a peguam syarie is subject
to sub-s (2).
F
[76] It was submitted that the appellant in its wisdom, based on its
interpretation of the Syariah law, saw it fit to require such qualification as
stipulated in r 10. In such a circumstance it is therefore improper for the court
to doubt or question the wisdom of the appellant in imposing such a condition.
G
[77] In support of its argument, the appellant submitted that Parliament is
the legislative body of the Federation, and Parliament cannot pass a law which
is within the power of the State Legislature (see Mamat bin Daud & Ors v
Government of Malaysia [1988] 1 MLJ 119). Applying the above principle, the
H appellant argued that Parliament has no jurisdiction to legislate on matters
pertaining to Syariah matters, a right that is conferred on the State Legislature
under Item (1) and List II of the Ninth Schedule to the Federal Constitution.
[78] The appellant ventilated that s 59(2) has conferred power on the
I appellant, being the religious authority in Syariah matters, to decide on issues
pertaining to Hukum Syarak. In this regard Parliament may not be the
appropriate body to determine or even appreciate matters of Syariah. Thus for
all intents and purposes, the appellant in exercising its legislative powers
conferred by Parliament when legislating rules pertaining to the qualifications
of peguam syarie, has acted on its own interpretation of the Syariah. A
[79] The appellant further submitted that the disparity of practice in

different states in relation to the admission of peguam syarie (eg the state of
Selangor and Kelantan where non-Muslims are allowed to be peguam syarie)
could be justified on the premise that there are more than one acceptable B
Syariah interpretation. It is entirely up to each State Legislature, in its wisdom,
to choose the interpretation it deems fit and appropriate for that state.
[80] It was the contention of the appellant that the purposive interpretation
C
warrants that a peguam syarie must be a Muslim. In the first place, the Syariah
Court has jurisdiction only over persons professing the religion of Islam (see
para 1, List II, the Ninth Schedule of the Federal Constitution). Further, it was
explained that the Syariah Court must be able to enforce its laws and rules on
a peguam syarie when the need arises, say, when contempt or any breach of the
D
rules has been committed in that court. Any non-Muslim peguam syarie will
surely be outside the jurisdiction of the Syariah judge if such a breach were to
have been committed in that Syariah Court.
[81] The appellant further contended that, apart from the requirement E
provided for in s 59(1), r 10 provides for at least four additional qualifications,
aside from the faith qualification, namely, age qualification (r 10(b)),
non-conviction and non-bankrupt qualification (r 10(c)), citizenship
qualification (r 10(d)) and certificate qualification (r 10(e)). In a gist, it was
argued that the faith qualification legislated in r 10 does not run counter the F
Act.
[82] Learned counsel for the appellant contended that the appellant’s power
to legislate on the qualification of a peguam syarie is based on Islamic
Jurisprudence. This contention is highlighted in the judgment of the High G
Court wherein it was held that the decision of the appellant is founded on some
Syariah principle as laid down in the decision of the Muzakarah Jawatankuasa
Fatwa 9 Majlis Kebangsaan and also Siti Nurhayati bt Mohd Daud v Dato’ Mohd
Zaidi bin Mohd JH XX11 1/1 1428H (a decision of the Syariah High Court).
H
[83] Further it was argued that the appellant’s power to make rules pursuant
to s 59(2) will not be invalidated on ground of unconstitutionality. The
appellant highlighted that art 8(5) provides lawful discrimination based on
classification, where it provides:
(5) This Article does not invalidate or prohibit – I
(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
A religion, to persons professing that religion … ;
[84] In order to ascertain whether a classification is permissible or not the

appellant referred to the case of Datuk Haji Harun bin Haji Idris v Public
Prosecutor [1977] 2 MLJ 155 at pp 165–166. The relevant part reads as
B
follows:
1. The equality provision is not absolute. It does not mean that all laws must apply
uniformly to all persons in all circumstances everywhere.
2. The equality provision is qualified. Specifically, discrimination is permitted
C within clause (5) of Article 8 and within Article 153.
3. The prohibition or unequal treatment applies not only to the legislature but also
to the executive – this is seen from the use of the words ‘public authority’ in clause
(4) and ‘practice’ in clause (5)(b) of Article 8.
D 4. The prohibition applies to both substantive and procedural law.
5. Article 8 itself envisages that there may be lawful discrimination based on
classification – thus Muslims as opposed to non-Muslims (para (b) of clause (5) of
Article 8), aborigines as opposed to others (para (c)); residents in a particular State
as opposed to residents elsewhere (para (d)); and Malays and natives of Borneo as
E
opposed to others who are not (Article 153) …
[85] The appellant made reference to various articles, amongst them an

article written by Dr Mohamad bin Arifin titled ‘Islam Dalam Perlembagaan
F Persekutuan’ and an article written by Mohamed Ismail bin Mohamed Shariff
titled ‘The Legislative Jurisdiction of the Federal Parliament in Matters Involving
Islamic Law’ [2005] 3 MLJ cv. These articles were adduced in order to support
the notion that Islamic law relates to the personal and family law of Muslims,
with cl 74(4) of the Federal Constitution further emphasising that Islamic Law
G applicable to Muslims should not just be confined to matters of Islamic
personal law but to include also other Islamic personal laws not so enumerated
in para 1 of the Ninth Schedule of the Federal Constitution.
[86] In relation to art 5(1), by applying the principles in Government of

H Malaysia & Anor v Selangor Pilot Association [1977] 1 MLJ 133 and S
Kulasingam & Anor v Commissioner of Lands, Federal Territory & Ors [1982] 1
MLJ 204 at p 206, the appellant submitted that the fundamental right
thereunder is not absolute, and such right may be taken away in accordance
with law/duly passed by Parliament.
I
[87] It was submitted that the learned judge of the High Court was correct
in deciding that the allegation by the respondent of a loss of her livelihood was
totally misplaced. This is so as the respondent is not prevented from practising
her profession as an advocate and solicitor in the civil court. There is therefore
no unfair discrimination here whether under art 8(1) or art 5(1). A
[88] Learned counsel for the appellant further argued that art 10(1)(c) is
inapplicable as that provision refers specifically to the right to form
associations, and not to the right to be a member of any profession or
association. B
THE RESPONDENT’S SUBMISSION
[89] Learned counsel for the respondent argued that the only requirement
stipulated under s 59(1), for a person to be accepted as a peguam syarie is, ‘ … C
any person having sufficient knowledge of Islamic Law’. As singular as that.
Section 59(2) is merely an enabling provision for the appellant to make
‘Kaedah-Kaedah’ (‘the rules’) to regulate the procedure and qualifications for
admission as a peguam syarie.
D
[90] With rule 10 being made pursuant to s 59(2) it thus cannot go beyond
the qualification of sufficiency of knowledge in Islamic Law. By no account, as
submitted by the respondent, could the appellant by way of a subsidiary
legislation make rules inconsistent with s 59(1).
E
[91] That being so, that part of rule 10 currently under scrutiny is ultra vires
the Act and therefore liable to be declared void. It has exceeded the limits
prescribed by the parent law by creating an inconsistency with it. The
respondent relied on s 23 of the Interpretation Acts 1948 and 1967 to support F
its application.
[92] On the constitutional aspect, learned counsel for the respondent began
by alluding to art 8(1), which provides that all persons are equal before the law,
and entitled to the equal protection of the law. G
[93] Going further, learned counsel ventilated that art 8(2) prohibits any
discrimination against citizens on the ground only of religion, race, descent …
or carrying on any trade, business, profession, vocation or employment except
as expressly authorised by the constitution. H
[94] The gist of the respondent’s contention was that art 8(1) is wide enough
to cover any form of discrimination. It was submitted that as a citizen she is
entitled to plead art 8(2), as she is discriminated against on the ground of
religion, in pursuance of her profession as a peguam syarie. I
[95] It was further argued that art 8(5)(a) has no application in the present
case, as practising law is a profession; it being neither an office nor
employment.
A [96] The respondent concedes that lawful discrimination is allowed but

must be based on reasonable classification, and for purposes of this appeal, any
provision regulating personal law, 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.
B
[97] To satisfy the classification two conditions have to fulfilled, namely:
(a) that the classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others; and
C
(b) that differentia must have a rational relation to the object sought to be
achieved by the Act.
[98] As far as the respondent was concerned the appellants failed to satisfy
D the two conditions.
[99] It was the submission of the respondent that the object of s 59(1) is to
ensure competency in Islamic Law to practise as a peguam syarie. It is all about
academic knowledge and not about a person’s religious faith.
E
[100] The respondent also fell back on art 5 which provides that no person
shall be deprived of his life or personal liberty save in accordance with law. In
this connection the right to life includes the right to livelihood. It was
contended that r 10, which imposes a restriction that a person must be a
F
Muslim in order to be admitted as a peguam syarie, renders her fundamental
right to livelihood ineffective or illusory.
[101] The respondent also argued on art 10(1)(c) though not forcefully.
G
[102] The respondent submitted that the constitutional guarantee of
fundamental liberties, which is housed in Part II of the Federal Constitution,
plainly states that the articles therein apply to all persons or citizens as the case
may be, regardless of their race, religion, gender etc.
H
MY ANALYSIS
[103] Section 59 reads as follows:

59 peguam syarie –
I
(1) Subject to subsection (2), the Majlis may admit any person having sufficient
knowledge of Islamic Law to be peguam syarie to represent parties in any
proceedings before the Syariah Court.
(2) The Majlis may, with the approval of the Yang di-Pertuan Agong, make rules-
(a) to provide for the procedure, qualifications and fees for the admission of peguam A
syarie; and
(b) to regulate, control and supervise the conduct of peguam syarie.
[104] The Court of Appeal in its grounds of judgment, when discussing the B
words ‘any person’ as legislated in s 59(1), had earlier opined:
In the absence of any definition, the words ‘any person’ in section 59(1) in their
natural meaning must mean any person, regardless of his or her religion. There is
nothing in the Act to restrict the meaning of the words ‘any person’ to mean ‘any
Muslim’. Thus, any person, with sufficient knowledge of Islamic Law may under C
section 59(1) be admitted as a peguam syarie at the discretion of the Majlis.
[105] A plain reading of s 59(1) has kept the qualification open, with the
prerequisite being only of ‘any person’ with sufficient knowledge of Islamic law.
D
The appellant, pursuant to its rule-making power, subsequently imposed a
restriction by demanding that to succeed in his admission application as a
peguam syarie an applicant must first be a Muslim. In a word being sufficiently
knowledgeable of Islamic Law did not suffice.
E
[106] The restriction imposed by the appellant is reflected in r 10 which
reads:
10 A person may be admitted to be a peguam syarie if he –
(a) (i) is a Muslim and has passed the final examinations which leads to the
F
certificate of a bachelor’s degree in Syariah from any university of any Islamic
educational institution recognised by the Government of Malaysia;
(ii) is a Muslim member of the Judicial and Legal service of the Federation; or
(iii) is a Muslim advocate and solicitor enrolled under the Legal Profession Act
1976; or G
(iv) has served as a Syarie Judge or as a Kathi with any State Government in Malaysia
for a period of not less than seven years;
(b) has attained the age of twenty-one years;
(c) is of good behavior and – H
(i) has never been convicted in Malaysia or in any other place of any criminal
offence;
(ii) has never been adjudged bankrupt
I
(d) is a Malaysian citizen; and
(e) as an advocate and solicitor, has passed the Sijil Peguam Syarie examination.
[107] Section 59(2) is an enabling provision to make rules. Rules by their

A very nature, are meant to be facilitative of a substantive right conferred by a

parent Act, and not meant to whittle down the operation of the relevant
provision of an Act.
[108] Shorn of all the frills, with the introduction of r 10 in the current
B format, the appellant has now rewritten s 59(1) by effectively making it read,
‘any Muslim with sufficient knowledge of Islamic law’ may become a peguam
syarie. It is clearly a case of a subsidiary legislation subjugating a parent
legislation. Now, a non-Muslim, in this case a Christian, however academically
endowed, is effectively barred from applying to be a peguam syarie.
C
[109] The application of the respondent brought into focus s 17A of the
Interpretation Acts 1948 and 1967, which enjoins a purposive reading to be
undertaken when interpreting a statute. Any literal and blinkered approach
D must now compete with the context and purpose of the Act as legislated by
Parliament. Tenaga Nasional Bhd v Ong See Teong & Anor (suing on their behalf
and for all parties who are the owners or tenants of the Kampung Sungai Terentang
– which was served with a notice under ss 13 and 16 of the Electricity Supply Act
1990) [2010] 2 MLJ 155 made it abundantly clear that what must prevail is a
E construction that will promote the purpose of an Act. Even taxing statutes have
not escaped this approach as reflected by case laws (Palm Oil Research and
Development Board Malaysia & Anor v Premium Vegetable Oils Sdn Bhd &
another appeal [2005] 3 MLJ 97). In T Ramsay Ltd v Inland Revenue
Commissioners [1982] AC 300 Lord Wilberforce on the general approach to
F construction said:
What are ‘clear words’ is to be ascertained upon normal principles: these do not
confine the courts to literal interpretation. There may, indeed should, be considered
the context and scheme of the relevant Act as a whole, and its purpose may, indeed
should, be regarded.
G
[110] The relevancy of Hansard cannot be underestimated en route to
ascertaining the true meaning of s 59(1) and the purport of the Act. Lord
Griffith in Pepper v Hart [1993] AC 593 had occasion to state:
H The ever increasing volume of legislation must inevitably result in ambiguities of
statutory language which are not perceived at the time the legislation is enacted. The
object of the court in interpreting legislation is to give effect so far as the language
permits to the intention of the legislature. If the language proves to be ambiguous I
can see no sound reason not to consult Hansard to see if there is a clear statement of
the meaning that the words were intended to carry. The days have long passed when
I
the courts adopted a strict constructionist view of interpretation which required
them to adopt the literal meaning of the language. The courts now adopt a
purposive approach which seeks to give effect to the true purpose of legislation and
are prepared to look at much extraneous material that bears upon the background
against which the legislation was enacted. (Emphasis supplied.)
[111] In as much as allowances have been made when resorting to the A

Hansard report as an aid of statutory construction, this report is not
determinative of its meaning, but merely to help construe ambiguous and
obscure provisions in order to avoid absurdities. The words of the statute can
never be substituted by the words of the Minister (Chor Phaik Har v Farlim
Properties Sdn Bhd [1994] 3 MLJ 345). When there is no ambiguity in a B
provision, what with a purposive construction being a statutory demand
currently, a court must give effect to that piece of legislation.
[112] I now reproduce the relevant extracts from Hansard, especially the part
when moving the second reading of the Bill to amend s 59 of the Act on 14 C
August 1995, where the then the Minister in the Prime Minister’s Department
(Dato’ Dr Hj Abdul Hamid bin Hj Othman) at p 48 said:
Seksyen 59 pula telah dipinda keseluruhannya di mana di dalam peruntukan ini
diberi kuasa kepada Majlis untuk melantik mana-mana orang yang mempunyai D
pengetahuan mengenai hukum syarak yang mencukupi menjadi peguam syarie bagi
mengendalikan kes-kes di Mahkamah Syariah.
[113] On his winding-up speech on 16 August 1995, at the conclusion

debate of the said Amendment Bill, the minister stated as follows at pp 21–22: E
Bagi perkara peguam syarie, dengan adanya pindaan ini, maka di Wilayah
Persekutuan seorang peguam boleh mewakili anak guamnya walaupun dia bukan
beragama Islam. Ini akan dimasukkan dalam senarai tetapi mereka mestilah lulus di
dalam peperiksaan ataupun ujian-ujian yang ditentukan. Ini adalah selaras dengan
kehendak kita pada hari ini bahawa amalan undang-undang dan keadilan di negara F
kita mestilah betul dan lurus dan ini sesuai pula dengan adanya Universiti Islam
Antarabangsa memberi kursus undang-undang syarak kepada
mahasiswa-mahasiswa yang tidak beragama Islam. (Emphasis added.)
[114] In NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ G
39, when delivering the judgment of the then Supreme Court (at pp 39 and
40), Seah SCJ took the opportunity to state:
It must always be borne in mind that we are Judges, not legislators. The
constitutional function of the courts is not only to interpret but also to enforce the
laws enacted by Parliament. In enforcing the law we must be the first to obey it. It H
should be noted that the power of a court to proceed in a particular course of
administering justice, was one of substance and not merely of form. The duty of the
court, and its only duty, is to expound the language of Act in accordance with the
settled rules of construction …
I
[115] In Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn
Bhd) v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113; [2006] 3 CLJ 177 this
court had occasion to refer to NKM Holdings Sdn Bhd and the above statement.
In Metramac it was also said, at p 200:
A Thus when the language used in a statute is clear effect must be given to it. As
Higgins J said in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(1920) 28 CLR 129 at pages 161–162:
The fundamental rule of interpretation, to which all others are subordinate, is
that a statute is to be expounded according to the intent of the Parliament that
B made it, and that intention has to be found by an examination of the language
used in the statute as a whole. The question is, what does the language mean; and
when we find what the language means in its ordinary and natural sense it is our
duty to obey that meaning even if we think the result to be inconvenient,
impolite or improbable.
C
The primary duty of the court is to give effect to the intention of the Legislature as
expressed in the words used by it and no outside consideration can be called in aid
to find another intention (see Nathu Prasad v Singhai Kepurchand [1976] Jab LJ
340).
D
[116] With the Hansard report clearly evincing that it was never the
intention of Parliament to shut the doors to academically endowed
non-Muslims having sufficient knowledge of Islamic law to appear in any
Syariah Court, and s 59(1) in its ordinary and natural sense easily understood,
E it is thus the primary duty of the court to give effect to the intention of
Parliament. Applying the plain meaning rule, the ‘enlarged’ words of ‘any
person’, by plain and simple reading must include any person regardless of his
or her religion (Chin Choy & Ors v Collector of Stamp Duties [1979] 1 MLJ 69).
Had it been the intention of Parliament to merely allow Muslims to be peguam
F syarie, that religious requirement could have been inserted in s 59(1) without
much hassle. This has been done in s 10 of the Act where detailed provisions
have been included to ensure that where an ex-officio member of the Majlis is
not a Muslim, he is replaced in the Majlis by ‘another officer who is a Muslim
and next in seniority from the same department or ministry’. Similarly, in s 42,
G
Parliament saw it fit to specify that the Syariah Appeal Court members are to be
chosen from a standing panel of ‘not more than seven Muslims’. Once the
meaning and intention of a statute are clear, it is not the province of the court
to find another intention of Parliament. Its duty is to enforce the clear words.
H
[117] A cursory perusal of the impugned part of r 10 (para 46 above) shows
that it is not in sync with the object of the Act, as the importation of a religious
requirement in this subsidiary piece of legislation without more, has
disqualified an otherwise eligible candidate here. More of this later.
I
ULTRA VIRES POINT
[118] Has r 10 exceeded the limits prescribed by the Act and created an
inconsistency with s 59(1)?
[119] Section 23 of the Interpretation Acts 1948 and 1967 is relevant in this A
regard and it reads:
Avoidance of subsidiary legislation in case of inconsistency with Act
23 (1) Any subsidiary legislation that is inconsistent with an Act (including the Act
under which the subsidiary legislation was made) shall be void to the extent of the B
inconsistency.
[120] I now discuss a few authorities. In Ira & AC Berk Ltd v Commonwealth
of Australia [1930] 30 SR (NSW) 119 the parent law provides for an
entitlement of a refund of payment under certain circumstances, but C
subsequently restricted by rules made pursuant to that parent law. The
restriction came in the form of an imposition of time limit in order to qualify
for that refund. The court held that such restrictive rules were ultra vires the
parent law.
D
[121] In Bharat Barrel & Drum Manufacturing Co Pte Ltd v Employees State
Insurance Corporation AIR 1972 SC 1935 the Indian Supreme Court there
held that substantive rights conferred by the principal Act could not be
curtailed or restricted by a subordinate piece of legislation.
E
[122] In Taylor v Dental Board of South Australia [1940] SASR 306, the
Dentists Act 1931 which was the parent legislation, provided for inclusion in
the registration of a qualified dentist new or additional qualifications acquired
by a qualified dentist. The dental board however made regulations that
F
restricted the inclusion of additional qualifications only to those qualifications
relevant to a person first seeking registration as a dentist. Richards J there held
that the regulations were ultra vires the parent law.
[123] A useful example referred to in the course of the hearing is V Sudeer v G

Bar Council of India AIR 1999 SC 1167. The brief facts are as follows. The
Advocates Act 1961, being the principal Act, did not stipulate that an applicant
for admission to the Bar was required to sit for a pre-enrolment training course
and examination. However, this requirement was imposed as an additional
qualification by rules made by the Bar Council under an enabling provision. H
The Supreme Court held that the said additional qualification was ultra vires
the parent Act as it had the effect of ‘whittling-down’ the qualifications listed in
the parent legislation and disqualifying an otherwise eligible candidate.
[124] In Palmco Holdings Bhd v Commissioner of Labour & Anor [1986] 1 I

MLJ 492 at p 494 Hashim Yeop A Sani SCJ explained:
The term ultra vires in relation to a delegated legislation can be interpreted in a
double sense. First it can mean that the rule or regulation in question deals with a
subject not within the scope of the power conferred upon the delegated legislative
A authority. Second, it can also mean that although the delegated legislation in
question deals with the proper subject it has gone beyond the limits prescribed by
the parent law.
[125] The second ‘sense’ applies in the current appeal wherein r 10 is clearly
B ultra vires its parent law as it has gone past the limit prescribed by the Act.
Admitting only Muslims as peguam syarie has no nexus to the object of the Act.
This additional requirement which militates against the very intention of
Parliament is contextually unsustainable, and has imposed a restrictive and
draconian qualification, something not subscribed in the Act.
C
THE CONSTITUTIONAL POINT
[126] Article 4(1) provides that the constitution is the supreme law of the
D Federation and any law passed after Merdeka Day, which is inconsistent with
the constitution shall, to the extent of the inconsistency, be void. A federal law
derives its existence from the constitution and there is no qualification attached
to it. Any law passed must be subordinate to the constitution, and in the
context before us, any law must be read subject to the liberty clauses, provided
E under Part II of the Federal Constitution (fundamental liberties part). In
Aminah v Superintendant of Prison, Pengkalan Chepa, Kelantan [1968] 1 MLJ
92 it was held that a person arrested under any law was entitled to the
protection of art 5 (a liberty clause), thus endorsing that any law passed must be
subordinate to the constitution. By that same token a state enactment, it being
F law, thus must be read subject to the Federal Constitution, and as
aforementioned, it being the supreme law of Malaysia.
[127] Under art 8(1) all persons are equal before the law and entitled to the
equal protection of the law.
G
[128] Article 8(2) legislates that unless expressly authorised by the
constitution, ‘ … there shall be no discrimination against citizens on the
ground only of religion … ’
H [129] With courts recognising the improbability of absolute equality,

principles have been laid down by judicial doctrines of reasonable classification
when interpreting art 8. Under the doctrine of reasonable classification people
in like circumstances will be treated alike, with discrimination in certain
instances existing between classes though not within a particular class. The
I necessity of legislative discrimination is due to the ‘complex problems arising
out of an infinite variety of human relations’ (see Public Prosecutor v Su Liang
Yu [1976] 2 MLJ 128). Without the need to dwell too deeply on case laws,
suffice if I state that it is now well established that a law that discriminates may
be validated if it is based on reasonable classification (Danaharta Urus Sdn Bhd
v Kekatong Sdn Bhd (Bar Council Malaysia, intervener) [2004] 2 MLJ 257; A
Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72). This
point was ventilated by both parties as briefly mentioned at paras 23, 24, 36, 37
and 38.
[130] Let us have another look at the facts before us. We have before us the B
Act and another piece of law (r 10) supposed to be facilitative in nature. There
is no problem with the Act in the current form as it is non-discriminative. The
dissatisfaction is with r 10. Rule 10 must be struck down if it discriminates
without reasonable classification.
C
[131] Any fear that a peguam syarie, regardless of his religion may interfere
with the personal law of his Muslim client in the course of a Syariah
proceedings, is without basis. By no stretch of the imagination will the
respondent be involved in the eventual decision here. That responsibility falls D
squarely on the lap of the presiding Syariah judge, who not only enforces the
personal law of the Muslim litigant, but is the decider of facts and law in the
relevant proceedings.
[132] On the issue of legal professionalism, I fail to fathom how a E

non-Muslim peguam syarie may detract from or be inconsistent with the
enforcement of justice and purport of the administration of Islamic Law or the
organisation of Syariah Court, more so as there is no evidence before us that
may support such an unfounded eventuality.
F
[133] However, art 8 cl (5) of the Federal Constitution contains specific
constitutional exceptions to the rule against discrimination contained in the
earlier clauses of art 8. Clause (5) recognises the difference between factual
equality which is not empirically borne out in real life and a legal status that is G
recognised by law (Constitutional Law in Malaysia & Singapore (3rd Ed) by
Kevin YL Tan & Thio Li-ann).
[134] Article 8(5)(a) does not invalidate or prohibit any provision that
regulates personal law, which generally means domestic relations, family H
matters, succession, marriage, divorce and the like. This is not the issue before
us.
[135] Clause (5) para (b), however, is the provision which is relevant to the
issue before this court. It provides that the following is not invalidated or I
prohibited by art 8:
(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.
A [136] 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
appointment by clients to represent them in the Syariah Court.
B [137] The term ‘office’ is not defined in the Federal Constitution. Hence 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
C
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
practices.
D [138] 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’.
E
[139] 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
F 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 art 8(5)(b).
G
[140] I now discuss art 5. Under this article no person shall be deprived of
his life or personal liberty save in accordance with law.
[141] The Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan

H Pendidikan & Anor [1996] 1 MLJ 261 adopted a broad approach to the
definition of ‘life’ legislated in art 5(1). For brevity, I find no necessity in
reproducing the reasoning behind that broad approach. Suffice if I regurgitate
what the court said through Gopal Sri Ram JCA:
… the expression ‘life’ does not refer to mere existence. It incorporates all those
I facets that are an integral part of life itself and those matters which go to form the
quality of life. Of these are the rights to seek and be engaged in lawful and gainful
employment …
[142] The effect of the above approach (though in relation to the definition
of ‘life’ and which regretfully failed to discuss the earlier case of Government of A
Malaysia & Ors v Loh Wai Kong) is that under art 5 the respondent is guaranteed
of her fundamental right to livelihood; she is not to be deprived of her
livelihood by a negative or restrictive provision. Needless to say r 10 in its
current format, which negatives and restricts her rights, and acquiescing to
Gopal Sri Ram’s JCA point of view, would invariably infringe the respondent’s B
constitutional rights.
[143] Lord Suffian LP, on the other hand, in Government of Malaysia & Ors
v Loh Wai Kong [1979] 2 MLJ 33, when discussing the issue at hand, stated
C
that art 5 speaks of personal liberty and not of liberty simpliciter. This article
only relates to the person or body of the individual. Personal liberty was held
not to include certain rights, like right of travel or right to passport. The
respondent there had argued that the refusal or delay in granting him a passport
violated his right of personal liberty under art 5. D
[144] In the case of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan

[2002] 3 MLJ 72, this court had occasion to state:
In our view, the words ‘personal liberty’ should be given the meaning in the context
E
of art 5 as a whole. In this respect, we adopt what has been said by Suffian LP in Loh
Wai Kong …
[145] Mohamed Dzaiddin FCJ in the above case also endorsed the following
words of Suffian LP, which read: F
… In the light of this principle, in construing ‘personal liberty’ in art 5 one must
look at the other clauses of the article, and in doing so we are convinced that the
article only guarantees a person, … from being ‘unlawfully detained … It will be
observed that these are all rights relating to the person or body of the individual …
G
[146] In Lo Pui Sang and Others v Mamata Kapildev Dave and Others
(Horizon Partners Pte Ltd, Intervener) and Other Appeals [2008] 4 SLR 754,
when discussing art 9(1) of the Singapore Constitution (in pari materia with
art 8(1) of the Federal Constitution), Choo Han Teck J said:
H
I do not think that the phrase ‘personal liberty’ in Article 9 was a reference to a right
of personal liberty to contract. It has always been understood to refer only to the
personal liberty of a person against unlawful incarceration or detention (emphasis
supplied).
I
[147] It cannot be overly emphasised that the Federal Constitution has
meticulously delineated matters of fundamental liberties, as set out in Part II of
the Federal Constitution, consisting of arts 5 to 13. They are provisions that:
(a) ensure the liberty of the person (art 5);
A (b) prohibit slavery and forced labour (art 6);

(c) provide protection against retrospective criminal laws and repeated trials
(art 7);
(d) legislate equality before the law and the rights to equal protection of the
B law (art 8) regardless of citizenship;
(e) lay down the prohibition of banishment and freedom of movement (art
9);
(f) promulgate freedom of speech, assembly and association (art 10);
C
(g) ensure freedom of religion (art 11);
(h) confirm the rights in respect of education (art 12); and
(i) provisions that guarantee protection to property (art 13).
D
[148] Despite such guarantees, the Federal Constitution on the other hand
provides that Parliament, pursuant to Part XI under art 149, may in certain
circumstances pass laws that may be inconsistent with arts 5, 9 or 10. Under art
150 the Yang di Pertuan Agong under certain circumstances may proclaim an
E emergency and Parliament may pass laws that may be inconsistent with the
provisions of the constitution including provisions for fundamental liberties
(The Constitution of Malaysia by M Suffian). In short, despite the liberties being
fundamental and guaranteed by the constitution ‘they are not immutable or
beyond the periphery of the amendatory powers of Parliament’ (Federal
F Constitution of Malaysia-a commentary by KV Padmanabha Rau).
[149] A quick scrutiny of those nine articles show that each and every article,
as articulated in them, has a peculiar role and purpose. I therefore am inclined
to adopt the approach of Suffian LP in Government of Malaysia & Ors v Loh Wai
G Kong that art 5 is meant to deal with issues of personal liberty only. It should
not import certain other rights, say, as elucidated above, a right to a passport or
right of travel. Such rights are more akin to privileges than rights of life or
personal liberty matters, which are more suitable to fall under art 9. On that
premise, with her personal liberty never compromised or in danger, I hold that
H the issue of livelihood in relation to her being denied admission as a peguam
syarie falls outside the ambit of art 5. Article 5 thus is of no help to the
respondent.
[150] I now briefly discuss the respondent’s art 10(1)(c) argument. She
I ventilated that pursuant to r 10 her right was infringed under this article.
Under this article all citizens have the right to form associations. Historically
this article is associated with free speech right, whereupon like-minded people
will band together in order to collectively project their views and cause. To
enhance their cause these people will set up associations in the like of trade
unions, political bodies and student bodies (Constitutional Law in Malaysia & A
Singapore p 1148). Regardless of that right, under para (c) of cl 1, restrictions
may be imposed if it relates to education and labour matters.
[151] Apart from being a guardian of the constitutional rights of the citizen,
it is also the duty of courts to interpret constitutional provisions. Let us look at B
the respondent’s complaint vis a vis cl 1 para (c). This provision speaks of ‘right
to form associations’. The question that begs to be answered is whether this
article is relevant to her argument, in light of the fact that her complaint relates
to the denial of her being a member of a profession, and not of being denied the
right to form an association. In light of the clear purpose of art 10(1)(c), which C
has nothing to do with admission as a peguam syarie, I therefore hold that the
respondent’s argument premised on this article must fail.
CONCLUSION
D
[152] For all the above reasons discussed I hold that the promulgation of r 10,
enabled by s 59(2), cannot go beyond the qualification of ‘ … sufficiency of
knowledge in Islamic Law’. The appellant cannot by way of a subsidiary
legislation, make r 10 that is inconsistent with s 59(1). It is thus ultra vires the
parent Act. E
[153] Rule 10 therefore can be declared null and void pursuant to s 23 of the
Interpretation Acts 1948 and 1967.
F
[154] My learned sister Zaharah Ibrahim FCJ has read this judgment in
draft and has expressed her agreement with it.
[155] For the above reasons, I dismiss the appellants’ appeal with costs.
G
[156] Question 1 is answered in the affirmative.
[157] Question 2 is answered in the negative.
Appeals allowed with no order as to costs. H
Reported by Kohila Nesan

Majlis Agama Islam Wilayah Persekutuan V Victoria Jayaseele Martin

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Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele

A Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele

B FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NOS 01(f )-10/03

Statutory Interpretation — Construction of statutes — Literal approach

Held, allowing the appeals with no order as to costs:

conditions which appeared in r 10 of the Rules. However, to interpret A

Diputuskan, membenarkan rayuan-rayuan tanpa perintah untuk kos:

sepertimana didapati dalam s 59(1) bermaksud untuk dibaca tertakluk A

F (4) (oleh Raus Sharif PCA, majoriti) Selanjutnya, mempunyai peguam

10(1)(c) Perlembagaan (lihat perenggan 52–58). A

A responden yang berasaskan perkara ini patut gagal (lihat perenggan

Appeal from: Civil Appeal No W-01–242 of 2011

[2] The respondent in both these appeals is Victoria Jayaseele Martin, an

[5] By a letter dated 9 September 2009 the Peguam Syarie Committee

AT THE COURT OF APPEAL

(a) r 10 of the Rules which provided that a person may be admitted as a A

AT THE FEDERAL COURT

of peguam syarie; and A

THE ULTRA VIRES QUESTION

[21] In response, learned counsel for the respondent submitted that r 10 of

[23] As we can see, clearly there is a sharp differing view as to the

[19] For the purpose of determining the meaning of qualification in s 59(1), I am

conferred on the Majlis to make rules regulating the procedure and A

[34] In the circumstances, we are unable to accede to the contentions urged D

THE CONSTITUTIONAL QUESTION

[38] On the discrimination point under art 8 of the Federal Constitution,

G [39] In relation to art 5(1) of the Federal Constitution, learned counsel’s

[40] In addressing the equality provisions under the Federal Constitution,

A is resident or carrying on business in any part of the Federation outside the

A (ii) the differentia has a rational relation to the object sought to be

Suriyadi FCJ (delivering dissenting judgment of the court):

D [61] The respondent is an advocate and solicitor of the High Court of

[62] She is a Christian.

[66] Hereinafter, any reference to an article refers to the Federal A

[67] Chronologically, on 14 May 2010 leave for the judicial review

THE APPELLANT’S SUBMISSION

[71] The appellant began by submitting that s 59(1) is the empowering

of peguam syarie, has acted on its own interpretation of the Syariah. A

[79] The appellant further submitted that the disparity of practice in

(a) any provision regulating personal law;

A religion, to persons professing that religion … ;

[84] In order to ascertain whether a classification is permissible or not the

[85] The appellant made reference to various articles, amongst them an

[86] In relation to art 5(1), by applying the principles in Government of

no unfair discrimination here whether under art 8(1) or art 5(1). A

THE RESPONDENT’S SUBMISSION

A [96] The respondent concedes that lawful discrimination is allowed but

[103] Section 59 reads as follows:

[107] Section 59(2) is an enabling provision to make rules. Rules by their

A very nature, are meant to be facilitative of a substantive right conferred by a

[111] In as much as allowances have been made when resorting to the A

[113] On his winding-up speech on 16 August 1995, at the conclusion

[123] A useful example referred to in the course of the hearing is V Sudeer v G

[124] In Palmco Holdings Bhd v Commissioner of Labour & Anor [1986] 1 I

H [129] With courts recognising the improbability of absolute equality,

[132] On the issue of legal professionalism, I fail to fathom how a E

A [136] What the respondent sought by seeking admission is the position of

D [138] Similarly, the term ‘employment’ is not defined in the Federal