Upholding Malaysian constitutional law from going down the slippery slope

KUALA LUMPUR, MALAYSIA – Media
OutReach – 29 November 2021 – Malaysian law firm Surenda
Ananth Advocates & Solicitors issues a statement today on the
constitutional law impact on Malaysia and Malaysians following the recent ban
of 4D lottery shops in the northern state of Kedah.

The Chief Minister of Kedah, Datuk Seri Muhammad Sanusi Md
Nor justified his actions for the state-wide ban and was reported to have said,
“as a Muslim and head of state, he has
the obligation to adhere to God’s instruction and he does not want to be
questioned in the afterlife“.

Malaysian lawyer Surendra Ananth says that many may not be
aware, but it was this concern that gave rise to the first written compilation
of Muslim law offences in Malaya (then, the Federated States of Malaya). On 10
October 1898 in a Pahang State Council meeting, the then Sultan of Pahang urged
the British Governor to assume the responsibility of drafting a Muslim law
enactment.

The Minutes of the Proceedings of the State Council record: “His Highness says that he is growing old,
and that the thought of his responsibility in this matter fills him with fear
in view of the fact that he will shortly be called upon to render an account to
God for all actions and of his neglect to fulfil his law. His Highness says
that he feels sure that if the Government realises his position in the matter,
and the immense importance which this question must have in his eyes, it will
find a means of punishing such crimes as he has named, and will so relieve him
of the weight of a moral responsibility which he finds himself quite unable to
bear”.

Despite criticisms, in 1904, an enactment drafted by the
British was passed in all the Federated States. It was generally called the
Muhammadan Laws Enactment. There were 9 offences included and it only applied
where all parties were Muslims. The number of Muslim offences increased over
the years. The power of the States to make such offences was eventually
codified in the Federal Constitution.

On 1 November, 2021, the Chief
Minister of Kedah, Datuk Seri Muhammad Sanusi Md Nor was conferred the “Dato’
Sri Paduka Mahkota Kedah” (SPMK) award, which carries the title “Datuk Seri”,
by the Kedah Sultan Sallehuddin Sultan Badlishah commemorating his 79th
birthday.

On 8 November, the High Court of
Malaysia ordered the newly minted Datuk Seri to pay RM50,000 to a member of
parliament (MP) over a defamatory video posted on Facebook two years ago of
protestors outside a Sports Toto outlet holding a banner of the MP’s name.

On November 17, the same Datuk Seri announced during a state
assembly that the Kedah State Government had decided to ban all 4D lottery
shops in the state. This was to be done through the local councils by rejecting
any license renewal applications.

Surendra reiterates that this ban is not issued under any
Islamic law. Islamic law, which is made by States, can only apply to persons
professing the religion of Islam and is limited to personal law matters. The
ban is implemented indirectly by directing the local councils in the state of
Kedah to refuse license renewal applications by entities running lotteries.

“This is illegal as lotteries fall under the Federal List in
the Ninth Schedule of the Federal Constitution, which means Parliament and the
Federal Government regulate lotteries and gambling. Malaysia’s Lotteries Act
1952 declares lotteries unlawful unless licensed by the Minister of Finance.
Local councils can regulate such premises on limited matters such as
operational hours, safety or place of business but a State cannot impose an
outright ban on lotteries and gambling,” Surendra affirms.

“Second, and more importantly, a State authority when making
a decision under a secular law applying to all persons, cannot make such
decision on the basis of Islam alone. The government is a government of all people
and not just Muslims,” he said.

On Islamic law offences, a State cannot use such laws to
prohibit gambling or lotteries. The number of Islamic law offences in each
state have significantly increased. As an example, in the state of Selangor,
there are over 30 Islamic offences. Most of these provisions are
unconstitutional. Although the state can create Islamic offences on matters
against the precepts of Islam, there is an important restriction imposed by the
Federal Constitution. Even if a matter is prohibited in Islam, it cannot be
made an offence if the same matters fall under the Federal List.

“Matters such as lotteries, criminal law, public order,
health and intoxicating liquors are all in the Federal List. Most of the
offences introduced recently in the Kelantan Syariah Criminal Code such as
destroying houses of worship, tattooing, undergoing plastic surgery, making
false claims etcetera, are unconstitutional. They all fall under the Federal
List,” said Surendra.

Most if not all of the Hudud offences introduced in the
Kelantan Syariah Criminal Code in 2015 are unconstitutional. They include
theft, robbery, adultery, sodomy, false accusation of adultery, consumption of
alcohol, homicide, causing bodily injury etcetera. All these matters are under
the Federal List and in fact have been made offences under federal law.

Putting aside the issue of legislative power, Surendra Ananth
added that there are also Islamic laws that violate fundamental rights
guaranteed in the Federal Constitution. He cites the case concerning Nur Sajat
as a good example. In or around February 2021, an arrest warrant was issued for
the Malaysian cosmetics entrepreneur who earlier that year, was charged for
cross-dressing under the Selangor Syariah Criminal Offences (Selangor) Enactment
1995. This provision clearly violates one’s right to dignity, self-autonomy and
freedom of expression. Nur Sajat has been granted asylum in Australia. It has
been reported that Malaysia is looking at an extradition request to Australia.
This will most likely be rejected if it is sought on the basis of the charge in
the Syariah Court. 

“The States’ power to make Islamic offences is limited only
to personal religious offences. This is the constitutional framework. There is
nothing wrong if one disagrees with this. However, what is wrong is to
misrepresent and misapply the Federal Constitution.

It is apparent that certain state governments are expanding
the role of Islam in a manner not contemplated under the Federal Constitution.
Although some might disagree with the vice, condoning or supporting such bans
is a slippery slope we should not go down,” concluded Surendra Ananth, a
Malaysian lawyer who is passionate about creating discourse surrounding Civil
Litigation, Commercial Law, Constitutional Law, Administrative Law and
Alternative Dispute Resolution in Malaysia.

Most constitutional law cases involve challenges against the
government. There are not many lawyers who handle such cases. Surendra hopes
that by speaking up, more lawyers will take up such challenges to ensure that
the rights of the individual are protected. He was admitted to practice as an
Advocate and Solicitor of the High Court of Malaya in July 2015. He appears in
various public interest and civil litigation cases in all levels of the court.
He is also a member of the Malaysian Bar Council.

The issuer is solely responsible for the content of this announcement.