Where is Article 9?

In light of recent developments where Section 15(5) of the UUCA was found to contradict Article 9 of the Consti, I thought that I should highlight another potential inconsistency. I’ve started reading statutes and the Islamic Family Act one was the thinnest of them all.

Section 59(2) of the Act says:

(2) Subject to Hukum Syarak and confirmation by the Court, a wife shall not be entitled to maintenance when she is nusyuz, or unreasonably refuses to obey the lawful wishes or commands of her husband, that is to say, inter alia —

(a) when she withholds her association with her husband;
(b) when she leaves her husband’s home against his will; or
(c) when she refuses to move with him to another home or place,

without any valid reason according to Hukum Syarak.

Honestly, I think that there is an inconsistency between this section – particularly s.59(2b) and s.59(2c) – of the Islamic Family Act with Article 9 of the Consti, which says that:

(1) No citizen shall be banished or excluded from the Federation.
(2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.
(3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.

So. I’m confused.

What Law Applies?

http://en.wikipedia.org/wiki/File:Putrajaya_4064188579_ec6a5c7efc.jpgThe ultimate reason for learning about the legal system is to figure out what law applies to a particular problem. Every legal system has its own little quirks due to the evolutionary nature of its laws. However, it is still essential to understand what laws address a particular problem in order to find a solution.

Anyway, that’s what I thought after listening to the introductory lecture on the Malaysian Legal System.

We have an especially peculiar legal system within Malaysia, which is governed by a whole set of laws that go way back in history. It’s not just about the statutes nor the courts. It encompasses everything from our Constitution(s), legislations, cases, common law, customs and Islamic laws.

Personally, I think that we need a new system. The current one is just too convoluted and inefficient. While it is not yet broke, it is definitely getting worn down by the day and will give in the future.

As the law is a living creature, this should not be an issue as we will develop and continue to evolve the law to tackle new problems.

Oh, and I learned what stare decisis and ratio decidendi and ober dictum means today.

Law is full of cool words from a dead language!

Who is a Muslim?

I learned that the law is inadequate in answering the question of who is a Muslim. We had an introductory lecture on Islamic Law today and the definition of what makes a person a Muslim, did come up and I question our lecturer (Abd Muhsin) on this.

From the point of view of Islam, a person is a Muslim as long as his aqidah is complete. It’s not a question of whether he practices the religion or not but only a matter of faith. Practice merely differentiates a good Muslim from a bad Muslim.

Also, the Al-Quran is the ultimate authority on Islamic Law and in it, the issue of aqidah is important and is clearly illustrated by al-Maidah verse 44, 45 and 47 that spells out what makes a person a kafir or non-Muslim.

However, I quickly spotted an inconsistency with the law.

Under the Islamic Family Act (s.5), a Muslim is defined purely on reputation, and I quote:

If for the purposes of this Act any question arises as to whether a person is a Muslim, that question shall be decided according to the criterion of general reputation, without making any attempt to question the faith, beliefs, conduct, behaviour, character, acts, or omissions of that person.

In other words, from the point of view of Islam, it is the faith that matters while from the point of view of Islamic Law in Malaysia, the faith is not considered at all. Someone can be classified a Muslim for the purpose of the law merely on consideration of general reputation.

To complicate matters even more, Article 160 of our Federal Constitution states that:

“Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and –

(a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or
(b) is the issue of such a person;

In this case, the person is a Muslim by merely being born in the right set of circumstances. Again, the question of aqidah does not arise. As long as someone is a Malay, he or she is automatically a Muslim regardless of faith.

At this point in my studies, there are a lot of things that I honestly do not know yet as I am still grappling with the law. However, this kind of inconsistency just sticks out like a sore thumb to me.

Also, this becomes a serious issue because only Muslims are under the jurisdiction of the Syariah courts in Malaysia. If the Islamic Law claims its authority from the Al-Quran, then Section 5 of the Islamic Family Act cannot possibly be correct as it explicitly excludes aqidah.

PS: Just realised that a friend of mine cannot possibly be considered a Malay even if his IC says so.