The use of the word 'Allah' by non-Muslims

I am of the Sikh faith. Ever since the founding of the faith more than 500 years ago, Sikhs have used 'Allah' to refer to God as well as many other terms such as Waheguru, Rab, Bhagwan, Khuda or Kudarat, Ram and Rahim and many more. The word 'Allah' appears repeatedly in their Holy Book.

The religion is epitomised by the Mool Mantar that appears as the first verse in the Sikh Holy Book. The translation of the Mool Mantar corresponds to what Prophet Mohammad proclaimed of 'Allah'. Sikhism believes that there is:

• Only One God
• Truth is His Name
• He is the Creator and Protector
• Fearless
• Has no Enmity
• Is the First Entity
• Is Eternal, and,
• Without Incarnations.

In the Sikh Holy Book, is to be found the following verse:

Aval Allah noor upaa-i-aa,
kudarat ke sabh bande,
ayk noor te sabh jag upaji-aa,
kaon bhale ko mande.

[Kabir, Sri Guru Granth Sahib pp. 1349-50]

Translation:

In the beginning God brought forth His light.
From His creative power came all beings.
From One light the entire universe came forth.
So who is good and who is bad?

I do believe that as a Sikh I cannot be denied my prayer and my right to refer to God as 'Allah'. It is a right as given to me in my prayers and enshrined in the Sikh Holy Book.

IS IT THE I.S.A. PER SE OR THE INTERPRETATIONS GIVEN BY THE JUDICIARY THAT MAKES IT SUCH A DRACONIAN LAW NOW?

[This posting is based on 2 published articles by the author: Preventive Detention: Part I – Constitutional Rights and the Executive, [2007] 1 MLJ lxiii; [2007] 1 MLJA 63 & Preventive Detention: Part II – Police Power To Arrest And Detain Pending Enquiries [2007] 4 MLJ cxxxii; [2007] 4 MLJA 132; and, a current work in progress: Brief Survey of the Legal History of Malaysian Law.]

There has been much focus on the infamous Internal Security Act 1960 (ISA) in recent times and even a movement calling for it to be repealed altogether. Is it the law that is bad or is it the manner in which the law has been applied by the executive and interpreted by the judiciary that has been found wanting? Although Malaysian constitutional law has its roots in English law and follows the ‘Westminster’ model and supposedly has the doctrine of ‘separation of powers’ there has been scant respect for it. In Malaysia, this constitutional concept has been reduced to being just a convenient tool to be used by the executive to increase its powers and at other times to be severely criticised as a remnant of British colonialism totally unsuitable and unsustainable in the modern Malaysia. The lack of respect for the parliamentary process is reflected in the comments of the former Prime Minister of Malaysia, Dr Mahathir, who has been quoted by Amnesty International [Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy, http://web.amnesty.org/library/index/ENGASA280061999] as saying that:

(I)n the main, Parliamentary sittings were regarded as a pleasant formality... which would have no effect on the course of the government. The sittings were a concession to a superfluous democratic practice. Its main value lay in the opportunity to flaunt the Government's strength. Off and on, this strength was used to change the constitution. The manner, the frequency and the trivial reasons for altering the constitution reduced this supreme law of the nation to a useless scrap of paper. [The Malay Dilemma, 1970, Times Books International]

In addition to the ISA, preventive detention is also allowed by the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights. [Review of the Internal Security Act 1960, 2003, at p.x. http://www.suhakam.org.my ]

The sad truth and stark reality is that the Malaysian courts have not been notably vigilant to prevent the executive employing preventive detention as an easy substitute for adequate penal laws and using it as a means to suppress political opposition and dissent. ‘Anti-government’ has at times been simply equated to being ‘anti-national’. In their Report, the Reid Commission (that was entrusted with the job of drafting the Merdeka Constitution) mentioned that the rights they were recommending had already been firmly established throughout Malaya and the guarantee of the fundamental rights would be provided by the mechanisms of: the Constitution being the supreme law; ‘the power and duty of the Courts to enforce these rights’; and, ‘the Courts would annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’. [See Chapter IX, Fundamental Rights: Constitutional Guarantees, Para 161 p.70 of the Report.]

Not only have the Malaysian courts failed to annul the encroachments on the fundamental rights but their lack of judicial activism has in fact subverted those rights further. The failure of the Malaysian courts in relation to the ISA starts with the fact that they have generally accepted the subjective satisfaction of the executive for justifying the detention of an individual.

In March 1988, Article 121(1)(b) of the Malaysian Constitution was amended to make the jurisdiction and powers of the court subject to federal law rather than the Constitution itself, thus making it possible for the Malaysian Parliament to limit or abolish judicial review by a simple majority vote rather than by the two-thirds majority required for a constitutional amendment. This was followed up by amendments to the ISA in 1989 that inserted sections 8A, 8B and 8C and they seem to slam the door shut altogether on judicial review where the substantive power is exercised by the Minister under section 8. The only review allowed is limited to procedural matters.

The courts have been most reluctant to address the fundamental issue of whether the amendment to Article 121(1)(b) of the Malaysian Constitution should even have been allowed to be made. They have preferred instead to repeatedly adopt the view taken by the Federal Court in Sugumar Balakrishnan (2002) 3 AMR 2817 that ‘the court must give expression to Parliament’s intention’ and inquire no further. In Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir (2003) 6 AMR 497 the Court was willing to shackle its own powers when it decided that although section 8B of the ISA ousted the court’s review jurisdiction it was not unconstitutional and that ‘an ouster clause may be effective in ousting the court’s review jurisdiction if that is the clear effect that Parliament intended; that if the intention of Parliament is expressed in words which are clear and explicit, then the court must give expression to that intention.’

Malaysian legal history shows that for too long the Malaysian judges have dubiously circumvented or disingenuously interpreted any right that may have been available to a detenu into impotence. Raja Azlan Shah FJ (as His Highness then was) in Loh Kooi Choon v Government of Malaysia (1977) 2 MLJ 187, summed up the true attitude of the Malaysian courts when he even went so far as to say:

‘Our courts ought not to enter this political thicket, even in such a worthwhile cause as the fundamental rights guaranteed by the constitution…’

Delivering the judgment of the Court, Steve L.K. Shim C.J. (Sabah & Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir, has accepted that under section 8 of the ISA, the Minister has been conferred powers of preventive detention that ‘can be said to be draconian in nature’ but nevertheless valid under the Malaysian Constitution. Accepting that these rights are ‘draconian’ but, at the same time legitimate in a constitution that has a chapter on ‘fundamental liberties’, is paradoxical.

It is clear that the legislature has been active in closing the doors of judicial review but the courts themselves have also been helpful in the process. In almost all Malaysian cases, the judges have been quite content to allow the executive to exercise the power of detention unfettered by any restraining power. Higher constitutional ideals are seldom alluded to in their judgments and on most occasions it is an exercise in semantics to interpret the words of the Malaysian Constitution and other written laws to strenuously accommodate preventive detention laws.

There have been moments in the recent judicial history of Malaysia, which have given a glimmer of a hope that at last there may be small footholds on the slippery walls the detenu has to scale when attempting to challenge a detention order. However, on appeal in all cases the Federal Court has snuffed out any hope of the judiciary adopting a new and exciting approach. For fleeting moments it sometimes serves to revitalise the spirit of the Malaysian Constitution and the protection (no matter how limited) it affords to a detenu.

The current approach of the Malaysian courts only serves to reduce executive accountability and respect for human rights under the rule of law. Compliance with constitutional law, it is submitted, is not confined to compliance with the written word of the Malaysian Constitution but also the ideals on which the Constitution is based. Legislation incompatible with those ideals should be struck down. In such situations the courts should bring themselves to act in a supervisory role rather than the conservative role they have adopted for so long. Judges should be able to apply a heightened standard of judicial review and be involved in the genuine examination of the process and merits of any detention order and not be reduced to a rubber-stamping role as envisaged by the amendments to the ISA.

The concept of natural justice is not unknown especially in constitutional law. When the law in question is silent or ambiguous there is nothing to prohibit the courts from applying the principles of natural justice. In fact, even if the law has been clearly spelt out by the Federal Parliament, the courts would still be justified in striking it down if it violates basic principles of natural justice that the civilised world has come to accept as entrenched rights. Where the executive or administration has failed to observe natural justice, then deprivation of personal liberty may be characterised as being not ‘in accordance with the law’ and any person detained should be given relief. Malaysian courts have largely ignored that concept in the interpretation of preventive detention laws and will either rue that fact or will have to start being innovative and use it to break the almost choking stranglehold the executive has on the rights of a detenu. At present the executive tramples these rights with impunity and marches on relentlessly obliterating the remaining rights.

Can an Australian Court Coerce the Transfer of Malaysian Land?

Recently a judgment was given in the Court of Appeal of the Supreme Court of Western Australia that seems to suggest that the provisions of the Malaysian National Land Code 1965 can be evaded and bypassed by a foreign court if it gives a judgment in personam and then decrees the transfer of the Malaysian property consequent to that judgment. The parties involved would then be required to sign the requisite transfer form in Australia and the property transferred in Malaysia without recourse to the High Court of Malaya and the need to enforce a foreign judgment. It is a judgment that can have grave consequences. The case of Singh v Singh [2009] WASCA 53 concerned a commercial dispute between two brothers. The appellant consequently became bankrupt. Although the Trustee in Bankruptcy had already investigated the transactions and decided that there were no grounds to proceed further, the respondent was seeking to declare that the transfer of the Malaysian property was fraudulently done to defeat the claims of the creditors. There was also a prior trust deed made in Malaysia, witnessed by a Malaysian lawyer, which gave the beneficial interest in the property to a third party. The appellant and other defendants filed conditional appearances challenging the jurisdiction of the Australian courts. It was submitted by the appellant (who appeared in person and argued the case against a Queen’s Counsel and a solicitor representing the respondent) that:

1. The title to the immovable property could be acquired, passed, and lost only according to the lex rei sitae (i.e. Malaysian land law).

2. There was no evidence to justify the inference that, by the comity of nations, the jurisdiction to determine the right over the immovable property had been allowed by Malaysia to Australia. An Australian Court could therefore not pass judgment on Malaysian law or direct the transfer of a Malaysian property.

3. An Australian court was the forum non conveniens as it was clearly the inappropriate forum in that:

3.1. It involved immovable property situated in Malaysia and only the High Court of Malaya had the jurisdiction, under section 340(2) and 417 of the Malaysian National Land Code 1965, to determine if the transfer of property to the registered proprietors was fraudulent and to make any relevant orders relating to the property.

3.2. The Writ of Summons in Australia was brought under section 89(1) of the Property Law Act 1969 (WA), which had no extra-territorial jurisdiction to apply in Malaysia or to override the express provisions of section 340 of the Malaysian National Land Code 1965.

3.3. The continuation of the proceedings in Australia would be vexatious and oppressive to the Appellant as there was no chance that the respondent could enforce the order, decree and judgment made by an Australian court in Malaysia.

4. It was submitted by the appellant that the Reciprocal Enforcement of Judgments Act 1958 (Revised 1972) did not apply as Australia is not a country granted reciprocal rights under Schedule 1 of the Act. It however did reflect the common law of Malaysia. Pullin JA, delivering the judgment of the Court of Appeal of the Supreme Court of Western Australia, decided that:

4.1. It was clear from section 5(2)(a)(iv) of the Reciprocal Enforcement of Judgments Act 1958 (Revised 1972) that according to the legislation there is no reason why the judgment of a Western Australian court would not be recognised in Malaysia if the judgment of the Western Australian court is a judgment in personam and the judgment debtor was resident in this State when the proceedings were instituted.

4.2. In coming to that conclusion the Court of Appeal of the Supreme Court of Western Australia ignored the next provision, i.e. section 5(2)(b), which basically provides that even in the case of an in personam judgment a Western Australian court shall not be deemed to have jurisdiction if it involved immovable property not situated in Western Australia.

4.3. Also ignored by the Court of Appeal of the Supreme Court of Western Australia was section 5(3) which also basically states that the Western Australian Supreme Court shall not be deemed to have jurisdiction if the subject matter of the proceedings was immovable property outside Australia.

5. Comity of Nations.

The Court of Appeal of the Supreme Court of Western Australia ignored the rule on the comity of nations, which provides that the courts of the adjudicating state would recognise the legitimate laws of other states, in the expectation that the other states would in turn also recognise the laws of the adjudicating state when the need arises. It is recognised as a courteous sentiment that is used to explain one country's motives for recognising legal rights acquired in another.

6. Malaysian National Land Code versus Property Law Act of Western Australia

6.1. The respondent was seeking a declaration that the transfer of the Malaysian property was with intent to defraud creditors within the meaning of section 89(1) of the Property Law Act 1969 of Western Australia and the appellant argued that the Malaysian National Land Code 1965 that grants indefeasibility of title governs transactions and dealings involving land in Malaysia and not section 89(1) of the Property Law Act 1969 of Western Australia which had no extra-territorial jurisdiction to apply in Malaysia.

6.2. The appellant further argued that the registered owner of a property can only be divested of the property by directions given to the Registrar of Titles by the High Court of Malaya under section 417 of the Code.

6.3. The Court of Appeal of the Supreme Court of Western Australia however concluded that section 89(1) of the Property Law Act 1969 of Western Australia had extra-territorial jurisdiction as it confers a right on certain persons to avoid fraudulent dispositions of property carried out with fraudulent intent and that right extended to immovable property out of the jurisdiction.

7. Enforcement of a Western Australian Judgment in Malaysia

The appellant submitted that any judgment obtained in Australia in relation to the transfer of land in Malaysia would be brutum fulmen (an empty judgment) and would render the proceedings futile. While the Court of Appeal of the Supreme Court of Western Australia accepted the respondent’s admission that any judgment obtained in the Supreme Court of Western Australia could not be registered in Malaysia, it concluded that parties could be coerced into signing the necessary transfer form and the transfer taken to Malaysia and registered in the Malaysian Office of Titles. There would be no need to enforce the judgment in Malaysia. It effectively seeks to evade and bypass the Malaysian National Land Code 1965 and the authority of the High Court of Malaya.

8. Doctrine of Renvoi

The appellant also pointed out that it was important to note that the doctrine of renvoi, which normally has very limited application in private international law, nevertheless does apply in relation to questions of title or succession to immovable property located in another country. Under the doctrine, the court would look at the private international law of the country where the immovable property is situated and apply the law the other country would apply. The rationale for this doctrine is that it was important to decide a case just as it would be decided under the lex situs because any inconsistent judgment would be of questionable validity. Unfortunately, the Court of Appeal of the Supreme Court of Western Australia made no reference to or mention of the doctrine of renvoi that obviously needed to be considered.

Conclusion

Judgments regarding immovable property located in a foreign jurisdiction, as foreign judgments, have no validity and they are non est so far as the area outside the jurisdiction of the adjudicating court is concerned, if they do not conform to the principles of private international law. Such judgments are an absolute nullity in the international sense.

In making the ruling, the Court of Appeal of the Supreme Court of Western Australia did not consider at all the provisions of the Malaysian National Land Code 1965 and the numerous Malaysian cases that have ruled on the relevant provisions of the Code. The ruling of the Court of Appeal of the Supreme Court of Western Australia that it can decree a transfer of the property and it can bypass the provisions of the Malaysian National Land Code 1965 is audacious and an affront to the sovereignty of Malaysian law, against the comity of nations and does not comply with established private international law principles.

* For a full discussion of this topic see: Khaira, Hardial Singh, Enforcement of Foreign Judgments over Immovable Property in Malaysia [2007] 1 QLR 34.