RECENTLY,
there has been a lot of discussion in the media over the position of Syariah
laws under the Federal Constitution. Many ordinary people are perplexed and the
objective of this article is to explain (or at least attempt to explain) the
differences between these laws.
Selangor
state legislative assembly’s move to enable Syariah courts to conduct judicial
reviews of Islamic authorities’ decisions was declared unlawful by the Federal
Court last month, in the case of SIS
Forum (Malaysia) v Kerajaan Negeri Selangor.
The
court’s claim that judicial review is an inherent right of civil courts, as
well as its interpretation of what constitutes a natural person, are both
noteworthy.
The
Administration of the Religion of Islam (State of Selangor) Enactment 2003
(ARIE) intended to grant Selangor Syariah courts the jurisdiction to hear and
decide judicial reviews of decisions made by the Selangor Islamic Religious
Council (MAIS) and Selangor’s fatwa committee.
A
nine-judge panel of the Federal Court, led by Chief Justice Tun Tengku Maimun
Tuan Mat, unequivocally declared that the Selangor state legislative assembly
lacks the competence to adopt legislation giving Syariah courts the right to
review Islamic authorities’ decisions.
Now,
let us analyse the views of two well-known Malaysian jurists on the subject.
Tun Tengku Maimun Tuan
Mat, the Chief Justice of Malaysia
In
her lecture at the 12th Tun Suffian Memorial, University of Malaya Faculty of
Law Golden Jubilee Lecture earlier this month, Tengku Maimun, Malaysia’s tenth
chief justice, stated that in the Indira Gandhi’s case, the Federal Court
affirmed that a constitution must be construed in light of its historical and
philosophical background.
The
title of her lecture is “Reflections
& Lessons of a Constitutional Judge – Decision making, Law & Politics,
Legitimacy and Acceptance.”
In
addition, she stated that when reading the Federal Constitution, judges must
consider the historical and political context in which it was drafted.
Furthermore,
she emphasised that the Federal Constitution is based on the idea that it is
paramount, and that as such, all of us, including the three branches of
government; namely the Legislature, Executive, and Judiciary, are subject to
it.
Tengku
Maimun emphasised the need for the judiciary to remain independent and unaffected
by outside influences.
Meanwhile,
she stated that judges will be aware of any political overtones or undertones
in a case, but they must make decisions in a fair manner.
For
example, Article 4(1) of the Federal Constitution
states as follows:
‘This Constitution is the
supreme law of the Federation and any law passed after Merdeka Day which is
inconsistent with this Constitution shall, to the extent of the inconsistency,
be void.’
Tengku
Maimun reiterated in her lecture that Article 4(1) declares the Federal
Constitution to be supreme, and that any legislation passed after August 31,
1957 that are conflicting with the Federal Constitution are void to the degree
of the inconsistency.
She
also pointed out that Article 121(1)
vests judicial power in Malaysia’s Superior Courts, implying that the Judiciary
is the mechanism through which the Federal Constitution’s supremacy is
safeguarded.
The
supremacy of the Federal Constitution was tested and affirmed in R Rethana v The Government of Malaysia &
Anor and Danarharta Urus Sdn Bhd v Kekatong Sdn Bhd (Bar Council Malaysia,
Intervenor), where laws enacted by Parliament that are inconsistent with
the Federal Constitution can be declared void by the courts.
In
layman’s terms, the Federal Constitution is the “mother of all Malaysian laws”,
and any law, whether enacted by Parliament or by state legislative assemblies,
must be subject to it.
The
Chief Justice further asserted that “law” in this sense cannot include
constitutional amendments that are invalid under this Article.
As
a result, the Judiciary is only obligated to carry out its basic job as the
guardian of the Federal Constitution, according to her. Tengku Maimun also
conceded on the difficulty that arises when a constitutional provision is
violated for political reasons or is deeply entangled in politics.
However,
she stressed that public confidence in the judiciary is linked to public
acceptance and legitimacy, not just of judicial rulings, but also of Legislative
and Executive conduct.
Article 75 of the Federal
Constitution stated as
follows:
‘If any State law is
inconsistent with a federal law, the federal law shall prevail and the State
law shall, to the extent of the inconsistency, be void.’
To
summarise, if a state law conflicts with a federal law, the federal law will
take precedence, and the state legislation will be void to the degree of the
conflict.
Hence,
the scope of Islamic law that falls under the legislative power of the state,
according to List two of the Ninth
Schedule of the Federal Constitution, principally related to personal law,
offences against Islamic precepts, and the formation of Syariah courts. State
Islamic laws apply, and state Syariah courts only have jurisdiction over
Muslims within their territorial limits.
Where
else, the Article 121(1) reposes
judicial power in the Superior Courts, which means that the Judiciary is the
device through which the supremacy of the Federal Constitution is protected.
In a nutshell, the Federal Constitution’s supremacy is clearly established. Plus, various provisions of the Federal Constitution expressly proclaim this and reinforce Malaysia’s status as a secular state. – March 6, 2022
Comments