Thursday 28 Mar 2024
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This article first appeared in The Edge Malaysia Weekly on March 8, 2021 - March 14, 2021

This monthly report is compiled and briefly summarised by a group of lawyers on a voluntary basis for the benefit of readers of The Edge.

Please consult your own lawyers if you need advice on the cases, issues and related matters highlighted here.

 

 

PERSONAL LAWS AND  JURISDICTION OF SECULAR AND SYARIAH COURTS

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.       

Issues

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’).

Case summary and decision

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’.

Decision: 1st Question

Jurisdiction

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.

 

 

 

Top row, from left: Tengku Maimun CJ, Rohana Yusuf PCA, Azahar Mohamed CJM

Second row: Nallini Pathmanathan, Abdul Rahman Sebli, Zabariah Yusof FCJJ

Third row: Hasnah Hashim, Mary Lim and Rhodzariah Bujang FCJJ

[78] … Syariah Courts may only exercise jurisdiction over a person… on two conditions. Firstly, the person shall profess the religion of Islam… classified as jurisdiction ratione personae – where the jurisdiction… is contingent on the litigant’s legal persona…

[79] Secondly, even if Syariah Courts may exercise jurisdiction ratione personae, they must still ensure that they have jurisdiction over the subject-matter… classified as jurisdiction ratione materiae – or subject-matter jurisdiction.

[80] Unlike the superior courts…which are constitutionally established and in whom the judicial power of the Federation inherently vests, the Syariah Courts are creatures of statute (specifically State enactments) and accordingly, their jurisdiction is strictly circumscribed by the laws which established them. Absent jurisdictions ratione personae and ratione materiae over a person, Syariah Courts are not empowered by the FC to exercise any power over that person and if exercised, would be ultra vires the [Constitution].

Chief Justice Tengku Maimun

Whether the Appellant is a Muslim by paternal ascription

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.

[64] [Section 111 of the IFLE], which relates to the ascription of paternity, a child may only be ascribed the paternity of the father if he or she is born  to a woman who is married to the man for a period of more than six qamariah months. And the father may only disavow or disclaim paternity under the provisions of that section. It follows that a child born less than six qamariah months or born to a woman not married to the man who fathered the child is illegitimate and the nasab or paternity of the child could not be established in the father… section 111 applies to Ibrahim to remove him, in law, of any ascription of paternity to the plaintiff.

[65] … a holistic construction of IFLE 2003 against section 2 of the ARIE 2003 therefore suggests that ‘parents’, in section 2 of the ARIE 2003, refers only to the parents of legitimate children. Reason being, if section 111 of the IFLE 2003 not only renders a child illegitimate but also bars the ascription of paternity to the said child, then it stands to reason that the putative father cannot, in law, be considered the child’s father. This is the first reason why the plaintiff cannot be considered a Muslim simply by virtue of section 2(b) of the ARIE 2003.

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.

[27] I do not think we can extract a principle of Islamic law from the provisions of section 111 of the [IFLE] with certainty that the religious status of the illegitimate child born out of wedlock follows the religion of the natural mother at the time of birth and not the religion of the putative father who incidentally is a Muslim… [it is inappropriate] for a Civil Court dealing with the religious status of the Appellant at the time of birth to merely decide on the terms of the provision…

[28] …the legal question of religious status…bears spiritual and theological undertones. In my opinion, the Civil Court on its own is not qualified to determine this issue…unless it is an established principle of Islamic law and there is certainty on the matter…

[29] … to remove any doubt it is advisable the Civil Court obtains the opinion of qualified and eminent Islamic scholars… to assist the Court in determining the issue… With this in perspective… the expert opinion given by a Fatwa Committee… is relevant evidence to be considered in deciding with certainty the issue…

Chief Judge (Malaya) Azahar Mohamed

Decision: 2nd Question

Were Ah Mooi and Ibrahim married when the Appellant was born?

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.

[43] The evidence, when strung together, sufficiently casts doubt on the existence of [the] purported marriage. The Religious Authorities’ Letters are especially compelling as they represent independent acknowledgements of lack of proof of the marriage’s existence…in the present case, the only documents purporting to establish proof of marriage are Ibrahim and Yap Ah Mooi’s written applications for their identity cards stating they were married… they are not proof and, accordingly, the inference drawn…from them is… erroneous…

Chief Justice Tengku Maimun

Whether Mooi was a Muslim or Malay

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.

 

HOUSING DEVELOPERS AND PURCHASERS

Federal Court (‘FC’) settles a long running dispute between developers and home buyers

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.

Issues

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?

Case summary and decision

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.

Decision: Legal character of the HDA and HDR

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’.

 

 

 

Top row, from left: Tengku Maimun CJ, Nallini Pathmanathan, Abdul Rahman Sebli FCJJ

Bottom row: Zabariah Yusof and Mary Lim FCJJ

[31] … A social legislation is a legal term for a specific set of laws passed by the legislature for the purpose of regulating the relationship between a weaker class of persons and a stronger class of persons. Given that one side always has the upper hand against the other due to the inequality of bargaining power, the State is compelled to intervene to balance the scales of justice by providing certain statutory safeguards for that weaker class…

[33] … When it comes to interpreting social legislation, the State having statutorily intervened, the Courts must give effect to the intention of Parliament and not the intention of parties. Otherwise, the attempt by the legislature to level the playing field by mitigating the inequality of bargaining power would be rendered nugatory…

[36] … we would summarise the principles on the interpretation of social legislation as follows:

(i) Statutory interpretation usually begins with the literal rule. However, and without being too prescriptive, where the provision under construction is ambiguous, the Courts will determine the meaning of the provision by resorting to other methods of construction foremost of which is the purposive rule...

(ii) The literal rule is automatically displaced by the purposive rule when it concerns the interpretation of the protective language of social legislation.

(iii) … even where a term or provision of a social legislation… is literally clear or unambiguous, the Court no less shoulders the obligation to ensure that the said term or provision is interpreted in a way which ensures maximum protection of the class in whose favour the social legislation was enacted.

Chief Justice Tengku Maimun

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.

Decision: Legal effect of booking fee

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.

[76] … When it concerns social legislation and the stronger side to the transaction has committed an illegal act, the existence of a penal provision does not automatically render the contract void. If that were so, then the legislation would, if it were taken to destroy the contract or to erase the weaker side’s right to a remedy, be to defeat the very protective purpose for which it was enacted. Accordingly, in such cases, the weaker party to the transaction will not be deemed to be in pari delicto and shall accordingly be entitled to the appropriate remedy. The natural result of this is that the stronger party will have that illegality construed against them. The result of that exercise depends very much on the facts of a particular case.

Decision: When was the contract formed

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.

[85] Had the developers…  complied strictly with the terms of the Scheduled Contracts as statutorily prescribed, then the payment of the initial 10 percent deposit and the signing of the statutory sale and purchase agreement would have been done simultaneously. The fact that they have nonetheless bypassed the statutory prohibition against the collection of booking fees, and the pro forma agreements being amply clear as to the fundamentals of the agreement, means that a bargain was indeed made at the time of the payment of the booking fee. In our judgment, the legislative intent was that the initial payment of monies, in the form of a deposit, is sufficient to constitute an intention to enter into a contract given that the agreement would have to be signed at the same time.

[86] The other reason that attracts the application of these foundational principles of contract law is to ensure maximal protection of the purchasers having regard to the social purpose of the HDA 1966 and its subsidiary legislation. At the risk of repetition, if the 10 percent deposit is paid at the same time of the signing of the agreement, there would be no issue of there being separate dates for calculating the LAD. Having bound themselves to a bargain by collecting the booking fee and procuring a signed pro forma and on top of it being responsible for drafting the final formal agreement, the developers have thereby put the purchasers in a disadvantageous position. The problem this poses is that the developers may abuse the opportunity to put whichever date they wish with a view to extend the date to deliver vacant possession.

Decision: LAD calculated on purchase price or ‘rebated’ purchase price

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.

[124] A rebate is essentially an ex post facto discount. It amounts to refund of monies already paid by the purchaser. The concept behind LAD is to compensate a purchaser for the developer’s failure to comply with the statutorily prescribed timeline. It would defeat the purpose of the protection guaranteed by the law if a developer is allowed to cut his losses incurred by the LAD by offsetting it using the purchaser’s own money. In our view, such an act amounts to nothing more than an act to manipulate the purchase price for the collateral purpose of having to pay LAD.

[125] The LAD prescribed by law is a statutory remedy afforded to the purchasers. There can therefore be no question of unjust enrichment upon an innocent party’s right to enforce his statutory remedy against the party in breach…

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