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
R Paneir Selvam is the principal consultant of Arunachala Research & Consultancy Sdn Bhd, a think tank specialising on strategic national and geo-political matters.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
