NOV 3 — There have been contentions that the restriction on the interpretation of Ahli Sunnah Wal Jamaah in the so-called controversial Mufti (Federal Territories) Bill 2024 to only those adhering to a certain school of thought, could be challenged in the spirit of constitutional flexibility and the diverse Islamic interpretations.

It has been contended that by Article 8 of the Federal Constitution — that there shall be no discrimination against any person, and that all persons are equal before the law — the restriction to persons of certain denominations within Islam to be appointed to the position of Mufti in the Federal Territories defies Article 8, thus making the Bill unconstitutional.

It is mind boggling that one should read Article 8 only in part. For good measure the whole of Article 8 is reproduced below:

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

(5) This Article does not invalidate or prohibit —

(a) any provision regulating personal law;

(b) any provisions or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion;

(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land)or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;

(d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;

(e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day;

(f) any provision restricting enlistment in the Malay Regiment to Malays. (Emphasis added)

One should read the case of Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin and another appeal [2016] where the Federal Court, by a majority (4:1), held that the law on Article 8 was settled in that, a law that discriminated was good law if it was based on reasonable or permissible classification.

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 thereunder.

In the case before the Court, the respondent, who was of the Christian faith, had applied to the Majlis Agama Islam Wilayah Persekutuan for admission as a syarie lawyer (peguam syarie) in Wilayah Persekutuan. The respondent was informed that her application was incapable of being processed on the ground that she was not a Muslim. According to the Majlis, under rule 10 of the Peguam Syarie Rules 1993, it was a requirement for an applicant applying for admission as a syarie lawyer to be a Muslim.

The respondent applied to the High Court for a judicial review and sought a few orders, namely a declaratory order, an order of certiorari and an order of mandamus. By way of her application the respondent sought, inter alia, a declaration that rule 10 above was ultra vires the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), and was also in contravention of Articles 8(1), 8(2), 5 and 10(1)(c) of the Federal Constitution, and as a consequence void.

The majority held that the rule requiring only a Muslim be admitted as peguam syarie discriminated against the respondent on adequate grounds. It did not violate Article 8 of the Constitution and was therefore a good law.

On Article 8(5)(b) highlighted above, President of the Court of Appeal Raus Sharif, who delivered the majority judgment, said as follows:

"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.

"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 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.

"Similarly, the term ‘employment’ is not defined in the Federal Constitution. The Concise Oxford Dictionary defines the verb to ‘employ’ as, inter alia, to ‘use the services of (a person) in return for payment’. The term ‘employment’ is defined as ‘(1) The act of employing or the state of being employed. (2) A person’s regular trade or profession’.

"There can be no doubt that when the respondent sought to be admitted as a peguam syarie she was seeking to be admitted to an ‘office’ that would enable her to then accept ‘employment’ by clients to represent them in the Syariah Court and carry on her profession in the Syariah Courts. Given the jurisdiction of the Syariah Courts, that office and that employment are certainly connected to the affairs of the religion of Islam. Consequently, a provision restricting admission as peguam syarie to Muslims is within the constitutional exception in Article 8(5)(b).”

I would therefore humbly argue that the restriction in the Bill is within the constitutional exception in Article 8(5)(b) of the Federal Constitution.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.