Hisham Bin Halim v 1. ) Maya Binti Ahmad Fuaad (BA-25-37-05/2021)

MAYA BINTI AHMAD FUAD (No. K/P: 820720-71-5156)

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KETUA PENGARAH JABATAN KEHAKIMAN SYARIAH

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN DAN MAJLIS AGAMA ISLAM SELANGOR (MAIS) …PENCELAH S/N OejlI3o6Umo3hvJdAR4gA JUDGMENT Introduction [1] This is an application for stay by the applicant, Hisham bin Halim, of the committal proceedings between the applicant and the first respondent in the Syariah High Court of Shah Alam [Application No: 10100-075-0829-2019]. [2] Enclosure 101 dated 6.7.2023 is an application made by the applicant under the Order 45 Rule 11 of the Rules of Court 2012, Section 73 of the Courts of Judicature Act 1964 [Act 91] and Order 92 Rule 4 of the Rules of Court 2012. This application essentially seeks an order to stay the ongoing committal proceedings between the applicant and the first respondent at the Selangor Syariah High Court, specifically identified as Application No: 10100-075-0829- 2019 (“Syariah Committal Proceeding”) until the final resolution of the applicant’s appeal at the Court of Appeal, as initiated through the Notice of Appeal dated 6.7.2023. [3] On 6.7.2023, this court dismissed the applicant’s substantive application for judicial review without imposing any costs. On the same day, the applicant filed a Notice of Appeal to challenge this court’s decision before the Court of Appeal, and concurrently, the applicant filed an application for stay in Enclosure 101. Factual Background [4] Brief facts leading to this application for stay in Enclosure 101 are as follows. On 20.9.2019, the first respondent filed a Notice S/N OejlI3o6Umo3hvJdAR4gA Application for Leave to Institute Committal Proceedings against the applicant in the Shah Alam Syariah High Court (hereinafter “R1’s Application”). [5] This application by the first respondent was allowed by the SCH on 8.10.2019. subsequently, a Notice to Show Cause was served on the applicant on 23.10.2019. [6] On the 28.5.2021 the applicant filed the present judicial review proceedings and in the process obtained both an ad interim and an interim stay pending the disposal of the judicial review proceeding. [7] On 6.7.2023 this court dismissed the judicial review proceedings and the applicant filed an appeal against the decision of this court in dismissing the judicial review. Grounds for Stay [8] The applicant put forth the following grounds in support of this application for stay pending the appeal at the Court of Appeal:

this court has the jurisdiction to grant a stay of proceedings pending the present appeal to the Court of Appeal;

(ii) Article 126 of the Federal Constitution only empowers the Federal Court, the Court of Appeal and the High Court to punish any contempt of itself;

(iii) the relevant State enactments, namely the Administration of the Religion of Islam (State of Selangor) Enactment 2003, Islamic Family Law (State of Selangor) Enactment 2003 and S/N OejlI3o6Umo3hvJdAR4gA Syariah Court Civil Procedure (State of Selangor) Enactment 2003, do not validly vest the power to punish for contempt in the Syariah High Court;

(iv) the Syariah Committal Proceeding were issued in response to the applicant’s alleged non-compliance to an order of the Syariah Court of Appeal but the same was done so/permitted to progress by the respondents;

the Syariah Committal Proceedings were afflicted by irrationality and procedural improprieties, in the administrative law sense; and

(vi) Article 121(1A) of the Federal Constitution does not oust the jurisdiction of the civil courts to interprete any written laws of the State or the Federal Constitution. Objection by the respondents [9] The respondents and the intervener in this case objected to this application for stay. [10] The first respondent submitted that this court is not the proper forum for this application to be heard. In support of this contention, learned counsel for the first respondent cited Article 121 (1A) of the Federal Constitution which reads: “(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” S/N OejlI3o6Umo3hvJdAR4gA [11] Section 192 of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 clearly empowers the Selangor Syariah High Court to adjourn the hearing of an application as deemed suitable. Furthermore, section 13 of the same enactment outlines the prescribed format for submitting an application to the Selangor Syariah High Court. [12] For the sake of comprehensiveness, it’s also worth noting that the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 is a state-level legislation enacted by the Selangor State Legislature in accordance with Item 1 of the State List in the Federal Constitution. This item explicitly grants the state legislatures the legal authority to legislate on matters related to the “constitution, organization, and procedure of the Syariah courts”. [13] Founded on these provisions, it was submitted that the Selangor Syariah High Courts has jurisdiction to hear an application to adjourn its own proceedings. The SHC had stayed its proceedings in the Syariah Committal proceedings on 28.10.2021. It was further submitted that Article 121 (1A) of the Federal Constitution excludes this court from hearing this stay application. [14] Senior Federal Counsel for the second, fourth, fifth, sixth and seventh respondents objected to this application for stay on the basis that the civil court does not have jurisdiction to stay proceedings of the Syariah court and that the application is an abuse of the court process. [15] Senior Federal Counsel for the third and eighth respondents opposed this application. The grounds for the objection are that this civil court only has jurisdiction to make an order of stay of the subject S/N OejlI3o6Umo3hvJdAR4gA matter if the judicial review upon grant of leave for judicial review until the substantive judicial review application is disposed. Reference was made to Order 52 rule 3(5) of the Rules of Court 2012 and the case of Tan Bun Teet & Ors v. Menteri Sains, Teknologi dan Inovasi Malaysia & Ors [2013] 3 MLJ 676. It was further submitted that there is no provision which allows this court to stay the subject matter of the judicial review application after the substantive judicial review application is dismissed. [16] The third and eight respondents also raised the grounds of jurisdiction whereby by virtue of Article 121 (1A) of the Federal Constitution, this court cannot grant a stay as it would amount to an interference in the SHC committal proceedings. [17] The intervener opposed this application for stay on the basis that there is no special circumstances to enable this court to grant a stay. The intervener further submitted that the stay would tantamount to an injunction. [See: Kerajaan Malaysia (Jabatan Kerja Raya) v. Tropical Profile Sdn Bhd & Satu Lagi Kes [2010] 7 CLJ 188] [18] This court will now proceed to consider the submissions by the applicant, the respondents and the intervener. Analysis and Findings [19] In this application, the applicant has filed an appeal at the Court of Appeal. In the interim, the applicant has sought for a stay pending the disposal of the appeal at the Court of Appeal. S/N OejlI3o6Umo3hvJdAR4gA [20] The granting of stay is a matter of judicial discretion. The court has an absolute and unfettered discretion whether or not to allow or refuse the application for stay. [21] In this regard, section 73 of the Courts of Judicature Act 1964 reads: “73. An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court below or the Court of Appeal so orders and no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may direct.” [22] Furthermore, Order 55 rule 16 of the Rules of Court 2012 provides:

“Stay of execution (O. 55, r. 16)

An appeal shall not operate as a stay of execution under the decision appealed against except in so far as the Court appealed from or the High Court may order, and any application for stay shall be made in the first instance to the Court appealed from.

The Court appealed from or the High Court may grant an order of stay of execution on such terms as it thinks fit.” [23] Based on the provisions alluded to above it can be concluded that, an appeal shall not operate as a stay of execution unless ordered by the court. S/N OejlI3o6Umo3hvJdAR4gA [24] In this regard, reference is made to the case of Kosma Palm Oil Mill Sdn Bhd & Ors v. Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257: “[7] The general rule is that an appeal shall not operate as a stay of execution unless the court so orders. Accordingly, as Brown J said in Serangoon Garden Estate Ltd v. Ang Keng [1953] MLJ 116 while commenting on the discretion to grant a stay: But it is a clear principle that the Court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. [23] The onus is on the applicants to demonstrate the existence of special circumstances to justify the grant of a stay of execution. The reasons must relate to the enforcement of the judgment. They must be deposed in the affidavit filed in support of the application.” [25] The applicant contends that there is special circumstances that warrant a stay being granted. The special circumstances, according to the applicant, is that the committal proceedings in the SHC would probably proceed, thus rendering the appeal nugatory. [26] While it has been established that this court has the discretion to grant a stay, the issue that needs to be first dealt with is whether this court has jurisdiction to stay a proceeding of the SHC. S/N OejlI3o6Umo3hvJdAR4gA [27] To consider this issue, this court alluded to Article 121 of the Federal Constitution which reads:

“Judicial power of the Federation

There shall be two High Courts of co-ordinate jurisdiction and status, namely—

one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(Repealed). and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.” [28] The Federal Court in the case of Subashini a/p Rajasingam v. Sarabanan a/l Thangathoray and other appeals [2008] 2 MLJ 147 had stated: “[23] Both civil and Syariah Courts are creatures of statutes such as the FC, the Acts of Parliament and the State S/N OejlI3o6Umo3hvJdAR4gA Enactments. These two courts are administered separately and they are independent of each other. Although the Syariah Courts are state courts they are not lower in status than the civil courts. I would say, they are of equal standing under the FC. This recognition of the Syariah Courts was largely due to art 121(1A) of the FC which excludes the jurisdiction of the civil courts on any matter within the jurisdiction of the Syariah Courts. The Article, which came into force from 10 June 1988, states: The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts. [24] In Mohamed Habibullah bin Mahmood v Faridah bte Dato' Talib [1993] 1 CLJ 264, the Supreme Court ruled that art 121(1A) of the FC makes clear distinction between the jurisdiction of the Syariah and the civil courts by holding that:

The intention of Parliament by Article 121

of the Federal Constitution is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court. Therefore, with the separation of the jurisdictions, the respective court cannot interfere with each other's jurisdiction. In Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara, Malaysia & Anor [1999] 2 MLJ 241 the Federal Court reminded at p 245: We agree with the views expressed by the Court of Appeal on the necessity of cl (1A) being introduced into art 121 of the Federal Constitution. It was to stop the practice of aggrieved parties coming to the S/N OejlI3o6Umo3hvJdAR4gA High Court to get the High Court to review decisions made by Syariah Courts. Decisions of Syariah Court should rightly be reviewed by their own appellate courts. They have their own court procedure where decisions of a court of a Kathi or Kathi Besar are appealable to their Court of Appeal. See also Nedunchelian v Uthiradam v Norshafiqah Mah Singai Annal & Ors [2005] 2 CLJ 306 where I agree with Syed Ahmad Helmy JC (as he then was) when he said at p 315: Cases authorities have repeatedly stressed and established that the High Court in its civil jurisdiction cannot challenge and or dispute and/or vary, strike out or declare or injunct the execution of an order of the Syariah Court — see Sukma Darmawan Sasmitaat Madja lwn. Ketua Pengarah Penjara Malaysia [1999] 1 CLJ 481; Kamariah bte Ali v. Kerajaan Negeri Kelantan, Malaysia dan Yang Lain (dan 3 Rayuan Yang Lain); [2002] 3 CLJ 766. Thus, the civil court cannot be moved to injunct a validly obtained order of a Syariah Court of competent jurisdiction. The injunction obtained by the wife, although addressed to the husband, was in effect a stay of proceedings of the husband's applications in the Syariah High Court and this amounts to an interference by the High Court of the husband's exercise of his right as a Muslim to pursue his remedies in the Syariah High Court. Obviously, the law does not permit such an interference.” [Emphasis added] S/N OejlI3o6Umo3hvJdAR4gA [29] More recently, the High Court in the case of Hisham bin Halim v. Maya binti Ahmad Fuaad & Ors [2021] MLJU 2293 had stated: “[10] The above Article 121 (1A) of the FC clearly protects the Syariah Court’s proceeding from the Civil Court’s interference. … [13] It is my view, if this court were to grant the stay order it will serve as a bad precedent as it would bring the Syariah Court’s system into chaos when a civil court is able to interfere at any stage of the Syariah Court’s proceeding. … [15] Further, I am of the opinion that if the Syariah Court proceeding keep being injunct in the Civil Court, it will deter the Syariah Court judges from performing its function under the law and would cause delay and/or embarrass the proceeding between the parties at the Syariah Court which would eventually denied justice to the parties before the Syariah Court.” [Emphasis added] [30] Based on a careful examination of Article 121(1A) of the Federal Constitution and the referenced cases this court is of the considered view, that civil high courts lack jurisdiction over matters falling within the purview of the Syariah Courts. [31] Additionally, this court had at the substantive stage of the judicial review, dismissed the application for judicial review. This court had S/N OejlI3o6Umo3hvJdAR4gA dismissed the applicant’s judicial review application against the committal proceedings in the SHC. One of the grounds of this court in dismissing the judicial review was lack of jurisdiction. This court opined that the SHC has jurisdiction to hear and determine cases on committal proceedings which includes contempt of court for a custody order. [32] After arriving at this conclusion and dismissing the judicial review due to the lack of jurisdiction to intervene in the Syariah Courts’ administration, it would be inconsistent for this court to subsequently issue a stay on the committal proceedings, which was previously determined as falling outside this court’s jurisdiction. [33] This court believes that continually subjecting Syariah Court proceedings to injunctions in the Civil Court could discourage Syariah Court judges from fulfilling their legal responsibilities. This practice has the potential to lead to delays and complications in the proceedings between the parties in the Syariah Court, ultimately denying justice to those involved in Syariah Court proceedings. In simpler terms, repeatedly seeking injunctions in the Civil Court for Syariah Court proceedings could dissuade Syariah Court judges from carrying out their duties. [34] This court is of the considered view that granting the stay order in this case would establish an unfavorable precedent, potentially disrupting the Syariah Court system by allowing civil court intervention at any point in Syariah court proceedings. This, in the view of this court, cannot be the intention of the legislative drafters when Article 121(1A) of the Federal Constitution was included into the Federal Constitution. Article 121(1A) of the Federal Constitution S/N OejlI3o6Umo3hvJdAR4gA clearly reflects Parliament’s intent to divest the High Court of jurisdiction over matters falling within the purview of the Syariah Court. [35] It’s important to emphasize that the Federal Constitution is the highest law in this nation and must be safeguarded and maintained at all times. Any effort to obfuscate or distort the interpretation of Article 121(1A) of the Federal Constitution poses a threat to the integrity of the entire legal framework established by the Federal Constitution. Conclusion [36] For the aforementioned grounds, this court dismisses this application in Enclosure 101 for stay of the Syariah Committal Proceedings with no order as to costs. Date: 02 November 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam S/N OejlI3o6Umo3hvJdAR4gA Counsel: For the applicant: Nizam Bashir bin Abdul Kariem, Malik Imtiaz Sarwar, K. Shanmuga, Kee Hui Yee, Lim Yvonne Tetuan Nizam Bashir & Associates Advocates & Solicitors C3-2-5, No. 1, Jalan Dutamas 1, Solaris Dutamas, 50480 Kuala Lumpur. info@nizambashir.com +6 03 6201 7089 For 1st respondent: Dato’ Abd Shukor bin Ahmad Tetuan Shukor Baljit & Partners Advocates & Solicitors No. 14-2, Wisma SBP, Jalan 13/48A, Sentul Raya Boulevard, Off Jalan Sentul, 51000 Kuala Lumpur general@shukorbaljit.com +6 03 6201 7089 For 2nd, 4th – 7th respondent: Khairul Nizam Abu Bakar, Nurul Izzah Binti Abdul Mutalib Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan Tingkat 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah, 40512 Shah Alam. pro@agc.gov.my +6 03 5544 7193 S/N OejlI3o6Umo3hvJdAR4gA For 3rd & 8th respondent: Ahmad Hanir bin Hanbali, Mohammad Sallehuddin bin Md Ali Bahagian Guaman, No. 45, Persiaran Perdana, Presint 4, 62100 Putrajaya. +603 8872 2000 For the intervener: Kamaruzaman Arif, Sofiah Omar Tetuan Kamaruzaman Arif & Sofiah Advocates & Solicitors Crystal Chambers, No. 4, Jalan Kristal 7/67A, Seksyen 7, 40000 Shah Alam. Selangor kamarsofiah@gmail.com +6 03 5524 1924 S/N OejlI3o6Umo3hvJdAR4gA