The Book of Prof Shad.docx

To profess and practice his religion and of article

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“to profess and practice his religion”; and of Article 3(4) that nothing in Article 3 “derogates from any other provision of this Constitution”. In Minister v Jamaluddin Othman [1989] 1 MLJ 418 the freedom of a convert from Islam was recognized by the Supreme Court. In Ng Wan Chan v Majlis Ugama Islam [1991] 3 MLJ 174 a Buddhist had converted to Islam but renounced his new religion later. On the evidence of the wife the civil court ruled that her husband was a Buddhist at the time of his death. A similar permissive sentiment of freedom of choice was expressed in Kamariah bte Ali lwn Kerajaan Kelantan [2002] 3 MLJ 657. In Che Omar Che Soh, Teoh Eng Huat, Lim Chan Seng, Shaikh Zolkaply and Nyona Tahir the judges upheld the delicate compromises written into the 1957 Constitution On the other hand many Muslim judges are uncomfortable with the restrictive interpretation of the term `Islam’ in Article 3(1) by Tun Salleh LP in Che Omar Che Soh v PP [1988] 2 MLJ 55 and the ruling that Article 3(1) ascribes a mere ritualistic and ceremonial role to Islam. Since the early 90s many judges have ignored Che Omar Che Soh and responded enthusiastically to the Muslim volksgeist. They have acted creatively to rewrite the Constitution in order to strengthen and broaden the Islamic features of the basic charter. It is with regret that one must record that the spirit of tolerance and accommodation that animated the Merdeka Constitution and was painstakingly preserved by the federal political executive for nearly four decades has been seriously undermined by many judicial decisions since the nineties. Foremost among these one-sided, ideological decisions are Dalip Kaur (1992), Hakim Lee (1998), Soon Singh (1999), Daud Mamat (2000), Priyathaseny (2003), Tongiah Jumali (2004), Shamala (2004), Kaliamma l (2006), Saravanann (2007) and Lina Joy (2007). In these decisions the courts have moved away from Che Omar Che Soh’s narrow interpretation of the term “Islam” in Article 3(1). The courts have shifted towards a view which is fully in accord with Islamic theory but which was explicitly rejected by the drafters of the Constitution that the term `Islam’ in Article 3(1) refers to a complete way of life and a holistic system of values and morals. The courts are interpreting the power of the States to legislate on Islam in a very expansive way even in disregard of the constitutional division of power between the states and the federation. They are rewriting the federal-state division of power in favour of the States on any matter touching on Islamic religion. 74 They are giving to syariah courts virtually absolute power over any issue involving syariah law even though some matters of Islamic jurisprudence are assigned by the Constitution to the civil courts. In some cases even though the State legislature has not conferred a power on the syariah court, the civil courts are stating that the powers of the syariah courts are inherent. Whatever powers the State legislature has, are impliedly being vested in the the syariah courts even in the absence of any explicit 74 Refer to chapter 10 67
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