Syarie Prosecutor of Selangor v Mohd Asri bin Zainal Abidin @ Abdul Talib [2010] 3 SHLR 136

SYARIE PROSECUTOR OF SELANGOR v MOHD ASRI BIN ZAINUL ABIDIN @ ABDUL TALIB [2010] 3 SHLR 136

Shariah High Court (Shah Alam)

Teaching the religion of Islamic without a tauliah

1.The Respondent in this case was charged under Section 119(1) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“the Enactment”)-

“Offence of teaching the religion of Islam or any aspect of the religion of Islam without a tauliah

(1) Any person who teaches the religion of Islam or any aspect of the religion of Islam without a tauliah granted under section 118 shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

(2) Subsection (1) shall not apply to-

(a) any person or class of person exempted by the Majlis under section 121 of this Enactment; or

(b) any person who teaches the religion of Islam or any aspect of the religion of Islam in his own residence to members of his own household only”.

2.  On 12 November 2009, the Applicant submitted an application to transfer the case from Gombak Timur Syariah Lower Court to Shah Alam Syariah High Court.  The first mention on this case was on 18 November 2009. However, the application was objected by the Respondent’s lawyer.

3. On the same date, the trial judge ordered the Appellant and the Respondent to argue whether it is appropriate to transfer this case to Shah Alam Syariah High Court.  At the end of the trial, the trial judge rejected the Applicant’s application to transfer the case.

4. Following the judgment, on 1 December 2009 the Applicant filed a review application (permohonan semakan) against the trial judge’s order.

5. Later, on 10 December 2009, the Respondent filed a preliminary objection notice (notis bantahan awal) against the review application on the issue regarding the jurisdiction of the Selangor Syariah High Court.

6. The Applicant then in his affidavit in reply to the preliminary objection notice requested the Court to set aside the preliminary objection notice.

7. Based on the preliminary objection notice, the Respondent contended that the Court has no jurisdiction to hear and try the charges against the Respondent under Section 119(1) of the Enactment on the grounds that-

(a) the offence as provided in the said section of the Enactment is not an offence against the pillars of the Islamic religion and is not consistent with hukum syarak

(b) the said section is ultra vires of the Federal Constitution under Srticles 10(1)(a) and 11(1) relating to human rights.

1.     Whether the Selangor Syariah Court has the jurisdiction to try any offence committed under Section 119(1) of the Enactment?

2.     Whether Section 119(1) of the Enactment is ultra vires with Article 10(1)(a) & 11(1) of the Federal Constitution?

1.    The jurisdiction of the Syariah Court

(a) The Respondent contended that Section 61(3)(a) of the Enactment only provides-

“Jurisdiction of the Syariah High Court

(3) The Syariah High Court shall-

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under the Syariah Criminal Offences Enactment (Selangor) 1995 [En. No. 9/1995] or under any other written law for the time being in force which prescribes offences against the precepts of the religions of Islam and may impose any punishment provided for the offence;”

(b) However, the offence charged against the Respondent under Section 119 of the Enactment is the offence of teaching Islam without a tauliah, and not an offence under the Syariah Criminal Offences (Selangor) Enactment 1995 in which is also not an offense against the precepts of Islam.

(c)  In elucidating the meaning of precepts of Islam, the Respondent referred to several authorities-

(i) Dr Wahbah al-Zuhayli in the book of al-Fiqh al-Islami Wa Adillatuh which states that precepts are:

“Rukun ialah sesuatu kewujudan sesuatu yang lain adalah terhenti di atas kewujudannya, sedang ia menjadi sebahagan dan hakikat sesuatu dan rukun tidak tergugur sama ada dengan sengaja, lupa atau jahil”.

(ii) Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan Malaysia, interverner) and other applications [2009] 6 MLJ 354 where the Court held that there is no definition of precept of islam in Second List of the Ninth Schedule of the Federal Constitution.  The learned judge made a reference to Oxford English Dictionary which provides that-

“a general command, or injunction; an instruction, direction or rule for action and conduct; esp, an injunction as to moral conduct; a maxim”.

(d) The Syariah High Court agreed that there is no precise definition of the words of precepts.  However, in the context of legislation in Malaysia, reference shall be made to the existing interpretation that has been decided by the court in previous cases.

(e)  The Syariah High Court referred to the same case, i.e Sulaiman bin Taqrib that the Federal Court in making a judgment has sought the opinion of three Islamic legal experts whose credibility cannot be disputed to assist in the interpretation of the word precepts of Islam. They are Tan Sri Sheikh Ghazali bin Hj Abdul Rahman and two academic figures namely Prof Dr Mohd Kamal bin Hassan and Prof Muhammad Hashim Kamali.

(f)   Tan Sri Sheikh Ghazali bin Hj Abdul Rahman opined precepts of Islam means the teachings or orders of the Islamic religion as contained in the Quran and Sunnah. It is not only limited to the five pillars of Islam. Islamic teachings include aqidah, shariah and akhlak.

(g) Therefore, based on the opinion given by Tan Sri Sheikh Ghazali bin Hj Abdul Rahman, the Syariah High Court is in the view that section 119(1) of the Enactment is related to akhlak.

(h)  Further, the Syariah High Court explained that the rule that requires every Muslim who wants to teach Islam to obtain a tauliah from Majlis Agama Islam is not a rule that is contrary to shariah law but it is a rule enacted by the Government.

(i) Regarding the jurisdiction of the Selangor Syariah Court on Section 119(1) of the Enactment, the Shah Alam Syariah High Court take the view of the judge in the case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islamic Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489.

(j)  The Federal Court in its decision emphasized that it is a common interpretation that if the meaning of a statute is not clear, it is permissible to use construction by implication and the court can conclude or supply the obvious omissions.

(k) The prevalence of such interpretation is applicable in the case here, and therefore, the jurisdiction of the Syariah Court to decide the question of leaving Islam, although not expressly provided for in the state Enactments can be assumed by implication derived from the provisions related to matters of embracing Islam.

(l) In that note, the Shah Alam Syariah High Court is in the view that due to the absence of a provision stating that Section 119(1) requires to be heard in any other court, i.e. Syariah Subordinate Court then this court has jurisdiction to try and decide offences under Section 119(1).

2.  The issue on ultra vires

(a) Article 10(1)(a) of the Federal Constitution provides that-

“every citizen has the right to freedom of speech and expression”.

(b) Further, Article 11(1) of the Federal Constitution provides-

“every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it”.

(c)  Islam is a religion that advocates freedom. That freedom includes personal freedom, freedom of religion, freedom of thought and speech, freedom of charity or work and so on. This freedom covers all aspects of life as long as it does not conflict with the Islamic law.

(d) In the book of Hak Asasi Manusia Menurut Islam Sejarah dan Konsepnya by Dr Abdul Monir Yaacob opines that-

“Kebebasan seseorang itu tertakluk kepada norma-norma yang terdapar dalam masyarakat itu sendiri.  Oleh itu kebebasan memerlukan penguasaan ke atas diri, dan di samping itu perlu ada perasaan menghormati ke atas hak orang lain.  Seperkara yang tidak dapat diasingkan dalam hubungan kemasyarakatan ialah kebebasan mestilah dipandu oleh peraturan dan undang-undang”.

(e) Therefore, the Shah Alam Syariah High Court held that the existence of Section 119(1) of the Enactment is not to restrict the freedom of a muslim.

(f) Hence, section 119(1) of the Enactment is not ultra vires with Articles 10(1)(a) and 11(1) of the Federal Constitution.

1.    The Court held that Section 119(1) of the Enactment-

(a)  does not contravene the precepts of islam; and

(b) is not ultra vires with Articles 10(1)(1) and 11(1) of the Federal Constitution.

2.  The Selangor Syariah High Court has the jurisdiction to try the offence under Section 119(1) of the Enactment.

1.  The provision requiring tauliah from Majlis Agama Islam prior to teaching any matter relating to the religion of Islam was not contrary to hukum syarak.  In fact, the said provision was enacted by the authority and is based on Siyasah Al-Syariyyah.

2. The Siyasah Al-Syariyyah includes every asoect of administration in which the authority is deem necessary to regulate the state for the needs and welfare of the people.

3.Therefore, Section 119(1) of the Enactment was introduced to prevent the spread of religious doctrines that are contrary to syariah that may cause rift among the muslims.