PUTRAJAYA - Islamic law should not be tested against the rights guaranteed by the Federal Constitution, says the Federal Territories Islamic Religious Council (MAIWP).
A five-member panel of the Federal Court will decide on this new argument by MAIWP, which has wide ramifications, on Aug 13.
Yesterday, the apex court was set to hear MAIWP's continuing submissions in its appeal against a landmark Court of Appeal decision that Victoria Jayaseele Martin, 52, a non-Muslim, could practise as a syariah lawyer in the Federal Territories.
However, the hearing did not proceed as scheduled.
MAIWP's lawyer, Haniff Khatri Abdulla, told reporters he had informed the court that the council had a new argument which was that fundamental rights guaranteed to all Malaysians could not be applied to determine the validity of Islamic laws.
"All provisions of Islamic enactments should not be tested against the fundamental liberty clauses of the Federal Constitution," said Haniff.
Martin's lawyer, Ranjit Singh, said they needed time to study the issue.
"To me, it is the biggest constitutional issue ever posed at the court.
"They want to argue that even if the provision in an enactment can be read to breach the fundamental liberty clauses, there can be no breach because they don't apply," added Ranjit.
Senior Federal Counsel Shamsul Bolhassan, who appeared for the Attorney-General's Chambers, said they would make their stand on the day of the hearing.
On Aug 24, 2009, Martin, who has a Master's degree in Comparative Law from the International Islamic University, applied to practise as a syariah lawyer in the Federal Territories but was rejected on the grounds that she was not a person who professed the religion of Islam as required by Rule 10 of the Syariah Lawyers Rules 1993.
On March 17, 2011, she challenged the requirement in the High Court but lost.
On June 21, 2013, however, then Court of Appeal judge Justice Abu Samah Nordin, who led a three-member Bench, reversed the ruling on grounds that the Administration of Islamic Law (Federal Territories) Act 1993 which governs the appointment of syariah lawyers does not specify applicants must be Muslim.
During MAIWP's appeal to the Federal Court in February, Chief Justice Arifin Zakaria said the court wanted to hear whether Rule 10 violates the rights of Malaysians to liberty, equality and freedom of association under Articles 5, 8 and 10 of the Constitution.
The parties agreed when he added: "Our answer would not be complete if that was not raised."
The Federal Court has also set Aug 13 to hear the appeal of the Negri Sembilan state government against last November's landmark ruling that punishing transgenders who cross-dress under Section 66 of the Syariah Criminal (Negeri Sembilan) Enactment 1992 contravenes their right to freedom of expression.
Aston Paiva, who appeared for the three transgenders, said the state government raised the same issue as MAIWP in its appeal.