This article first appeared in The Edge Malaysia Weekly on March 8, 2021 - March 14, 2021
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Article 121(1A) of the Federal Constitution (‘Constitution’), read together with the Ninth Schedule, List II, Item 1 of the State List, provides that secular courts ‘shall not have jurisdiction in respect of any matter within the jurisdiction of the Syariah courts’ (‘State List’). The State List provides for personal laws affecting persons professing the religion of Islam and the jurisdiction of the Syariah courts is exercisable on two conditions. First, the person professes the religion of Islam (‘Legal Persona’). Second, the matter falls within the subject-matter enumerated in the State List (‘Subject-matter Jurisdiction’).
If a Muslim seeks to renounce his/her faith in Islam (‘Renunciation Case’), the Syariah Court has exclusive jurisdiction. In such cases, the question is whether that person ‘is no longer a Muslim’. If a person claims that he/she was not a Muslim at birth, or never had the Legal Persona ab initio (from the very beginning), the question is whether that person ‘is or is not a Muslim’ (‘Ab Initio Case’). An Ab Initio Case may arise where an illegitimate child is born to a woman who does not profess the religion of Islam, or was never a Muslim, but the biological father is a Muslim.
In Rosliza binti Ibrahim v Kerajaan Negeri Selangor and Majlis Agama Islam Selangor, the FC considered two questions — (a) whether the secular courts have jurisdiction to hear and determine an Ab Initio Case (‘1st Question’); and (b) the burden of proving an Ab Initio Case (‘2nd Question’).The questions gave rise to other collateral questions concerning the Constitution, the provisions of the Administration of the Religion of Islam (State of Selangor Enactment) 2003 (‘ARIE’) and the Islamic Family Law (State of Selangor) Enactment 2003 (‘IFLE’).
Rosliza binti Ibrahim (‘Appellant’) was born in 1981. She claimed that (a) she was the illegitimate child of Yap Ah Mooi (‘Mooi’) and Ibrahim bin Hassan (‘Ibrahim’); (b) ever since her birth, Mooi had not profess the religion of Islam but her father Ibrahim did; and (c) she was not brought up as a Muslim and does not profess the religion of Islam. Her birth certificate concerning religion recorded ‘Information Not Obtained’. In 1994, Ibrahim had applied for an identity card on the Appellant’s behalf and recorded her religion to be ‘Islam’ and Mooi’s descent as ‘Malay’. In January 1995, Ibrahim applied for his identity card and stated his religion as Islam and that he was married (‘Ibrahim’s Documents’). In February 1995, Mooi applied for an identity card and stated her religion as ‘Buddha’ and that she was married. Prior to Mooi’s demise in 2009, she affirmed a statutory declaration (‘Mooi’s SD’) that the Appellant was her daughter, that Ibrahim and herself were the Appellant’s parents, that she and Ibrahim were unmarried and the Appellant had not been brought up as a Muslim. Letters from the Religious Authorities showed there was no record of the marriage of Mooi and Ibrahim, nor of the conversion of Mooi or the Appellant to Islam (‘RA Letters’).
The Appellant asserted that despite what Ibrahim’s Documents showed, Mooi and Ibrahim were never married, she was an illegitimate person and the religious status of her putative father could not be ascribed to her. Since she never had the Legal Persona ab initio, the secular courts had jurisdiction over her. Rosliza sought three declaratory orders:
• She was an illegitimate person and Mooi, a Buddhist, was her natural mother (‘DO 1’).
• The word ‘parents’ in s 2(b) of the ARIE does not include the putative father of an illegitimate child (‘DO 2’).
• She was not a person professing the religion of Islam, and that (i) all laws made under the State List do not apply to her; and (ii) the Syariah Courts within the State of Selangor do not have jurisdiction over her (‘DO 3’).
The Courts below concurrently held that Mooi and Ibrahim were married. Thus, the Appellant was a legitimate person and a Muslim by virtue of her father’s religious status. In effect, the Courts below held that it was a Renunciation Case. On appeal, the FC in a unanimous decision delivered by Tengku Maimun CJ (Rohana Yusuf PCA, Azahar Mohamed CJM, Nallini Pathmanathan, Abdul Rahman Sebli, Zabariah Yusof, Hasnah Hashim, Mary Lim and Rhodzariah Bujang FCJJ concurring), (a) the 1st Question was answered in the positive (secular courts have exclusive jurisdiction); and (b) the 2nd Question was answered in the negative (unproven truth of contents cannot be considered as proved facts for declaratory orders). However, the FC was not unanimous in granting all the declaratory orders sought by Rozila. Azahar Mohamed CJM and Hasnah Mohammed Hashim FCJ declined to grant DO 2 and DO 3 without the Court ‘first [requesting] for the opinion of the Fatwa Committee… pursuant to section 53’ of the ARIE ‘whether or not the Appellant was a Muslim at the time of birth’.
The FC unanimously rejected the arguments that it was a Renunciation Case. The FC emphasised the distinction between the questions whether a person ‘is or is not a Muslim’ and ‘is no longer a Muslim’ under the law. In Item 1 of the State List, so long as a person is a Muslim by identification, his/her Legal Persona is not affected by whether that person ‘practises or not, or whether… continues to believe in the faith or not’. In essence, the dispute ‘relates to the ‘question of [the Appellant’s] constitutional identity’. The FC held that the Constitution ‘vests all judicial jurisdiction and judicial power in the civil courts which interpret laws passed by secular institutions such as Parliament or the State Legislatures within their powers prescribed by the Ninth Schedule’, including the interpretation and application of s 111 of the IFLE affecting the ascription of a father’s religion to the Appellant.
The FC reversed the finding of the Courts below that on the evidence, Mooi and Ibrahim were married at the time of the Appellant’s birth and therefore the Appellant was a legitimate person by virtue of the word ‘either’ in s 2(b) of the ARIE. However, s 2 (b) of the ARIE should be read together with s 111 of the IFLE, which relates to the ascription of paternity. The FC held that construing s 111 of the IFLE against s 2 of the ARIE, the word ‘parents’ in s 2 of the ARIE refers to parents of legitimate children.
Azahar Mohamed CJM and Hasnah Mohammed Hashim FCJ granted DO 1. However, the learned Judges declined to make DO 2 and DO 3 without the benefit of the opinion of the Fatwa Committee to serve as guiding principles even if the opinion does not bind the Civil Courts.
Ibrahim did not give evidence. Rozila’s evidence that they were not married was corroborated by Mooi’s SD and the RA Letters. The Respondents relied on Ibrahim’s Documents and Mooi’s application for an identity card stating her status as ‘married’. The FC held that the Courts below were wrong in the application of evidential law. Rosliza cannot be expected to prove a negative fact, especially when the questions of legitimacy and marriage are constructs of law. Since the Respondents contended the particular positive fact that Rosliza’s parents were married, they must prove the affirmative fact in rebuttal once Rosliza had adduced evidence of doubt, on a balance of probabilities, of the marriage.
Article 160 of the Constitution defines a ‘Malay’, among other things, as a person who professes the religion of Islam, habitually speaks the Malay language and conforms to Malay custom. The entry in Ibrahim’s Documents that Mooi was a Malay was an anomaly and it conflicted with all other independent evidence on record. There was no proof that ‘Mooi professed Islam, and there is no evidence that she was ever a ‘Malay’’. Mooi’s documents consistently showed she was not a Malay — her identity card, her death certificate and the Appellant’s birth certificate stated Mooi as Chinese, including the Appellant’s evidence. On the balance of probabilities, Mooi was neither a Muslim or a Malay.
The repealed Housing Development (Control and Licensing) Rules 1970 allowed developers to collect a ‘booking fee’ not exceeding 2.5 per centum of the purchase price. The succeeding 1982 Rules impliedly did away with the ‘booking fee’ by providing that no changes may be made to the then prescribed contract (‘Statutory SPA’) unless prior written approval had been obtained from the Controller of Housing. Following an amendment, the discretionary power of the Controller was taken away. The succeeding 1989 Rules affecting payments are stricter in that it made the prohibition wider ranging by substituting the words ‘no housing developer’ shall collect any payment by whatever name called as prescribed by the contract of sale’ with the words ‘No person including parties acting as stakeholder…’ The absolute effect is that the payment of 10% deposit and signing of the Statutory SPA are conjoined events.
The ‘standard practice’ on the part of certain developers in collecting ‘booking fee’ is notorious. Recently, seven appeals (which were heard together) came before the FC in PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah and Ng Chee Kuan and other appeals (‘Appeals’) in the form of a common question of law posed to the FC — whether the date for calculation of LAD begins from the date of payment of deposit / booking fee / initial fee of written intention to purchase, or from the date of the SPA (‘Basic Question of Law’). The posed question embraced larger issues of law, which the FC had to consider.
The crux in the Basic Question of Law, as identified by the FC, was whether the developers’ argument that to calculate LAD from the date of payment of the ‘booking fee’ would result in a ‘windfall’ to home buyers under the guise of ‘protection’ given to them under the Housing Developers (Control and Licensing) Regulations 1989 (‘HDR 1989’). This was because of the clear words in the HDR 1989 that LAD is to be calculated from the date of the Statutory SPA. In answering the Basic Question of Law, several larger issues required consideration by the FC. First, whether the HDA and the HDR 1989 may properly be characterised as ‘social legislation’ and meant to protect a class of persons? Second, if so, what is the proper approach when construing a piece of social legislation? Third, where a party to a contract had secured a contract by committing an illegal act, how should the law deal with the guilty party? Fourth, does a contract come into existence upon payment of the booking fee and signing of pro forma documents? Fifth, if the developer gives a ‘rebate’ on the purchase price, is LAD to be calculated on the purchase price or ‘rebated’ purchase price?
The developers in the appeals were either developers of houses or apartment units and there was late delivery of the same to home buyers. Solicitors for the developers argued that the words ‘from the date of this Agreement’ in the Statutory SPA ‘must be read literally and in accordance with the intention of the parties’ and that the Court cannot ‘rewrite the written agreement’ such that the words can refer to another date for the purpose of calculating LAD. In the decision delivered by Tengku Maimun CJ (Nallini Pathmanathan, Abdul Rahman Sebli, Zabariah Mohd Yusof and Mary Lim Thiam Suan FCJJ concurring), the FC rejected the developers’ case on several grounds, including that the earlier decisions of the Supreme Court (now, the FC) did not decide that the LAD period begins literally from the printed date of the relevant Statutory SPA ‘even if that date was printed long after the booking fee was paid’. The earlier decisions must be read in their context.
The FC held that it is settled beyond dispute that the HDA and HDR 1989 are ‘social legislation’ and that a phrase attached to the legislation ‘is not merely a fanciful label’. This has been made clear by several pronouncements of the FC stretching back to as early as 1982. Also, an examination of the legislative amendments made since the repealed HDR 1970 respecting booking fees showed that Parliament had intended to arrest ingenious schemes invented by housing developers to overcome the protection afforded to home buyers, one of which inventions is the ‘booking fee’. In construing a piece of ‘social legislation’, it is long established that the legislation ‘must receive a liberal and not a restricted or rigid interpretation’.
Thus, in construing ‘social legislation’, the literal rule cannot be applied to reach a simplistic conclusion as contended by the developers. The purposive approach does not mean that the Court is ‘rewriting’ the contract. Rather, the Court is merely giving effect to the statutory protections afforded by Parliament to the class of protected persons.
The FC held that while penal sanctions are provided for under regulation 13 of the HDR 1989 for contravention, it does not necessarily make the Statutory SPA void by reason of illegality. It would be so if Parliament had clearly intended, whether expressly or impliedly, to render such contracts void and deprive home buyers of the remedy in claiming LAD. Regulation 13 is directed at the wrongdoers and not against the home buyers. Otherwise, it would directly negate the very protection for which the protective provisions were enacted.
The FC rejected the submission that a contract is only formed when the Statutory SPA is signed and no valid contract existed when the home buyers paid the booking fee and signed pro forma documents. The pro forma documents contained all the fundamentals of an agreement and showed that an enforceable bargain had been made when the booking fee was paid. The developers cannot rely on their own wrong to gain an advantage.
In cases of late delivery and the developer gives a ‘rebate’ to the purchasers, the argument was that the LAD should be calculated on the ‘rebated’ price. Otherwise, it would result in unjust enrichment to the home buyers. The FC rejected this argument as being artificial.
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