Did the Federal Court Err in Knocking Out the Transgender Case?

Introduction

1.    I respectfully disagree with the said decision. The crux of my reasoning is this, the Federal Court had failed to distinguish between two distinct concepts: the existence of a power and the exercise of such power. In essence, the Federal Court held that a constitutional challenge on the validity of a law must be brought directly to the Federal Court.

2.    As an example: The lord of Winterfell has judicial power to hear petitions in Winterfell as he is a delegate of the Iron Throne. He hears a petition in Winterfell and declares a marriage binding when it was not consummated (custom requires marriages to be consummated). The issue here is one of exercise of power. He had the power to hear it as it was in Winterfell, but exercised the power wrongly. Second scenario: the Lord of Winterfell hears a petition in Dorne and declares a marriage null and void as it was not consummated. What is the issue here? It is one of existence of such power, as he had power in Dorne to even begin with. Simple to grasp? Apparently not. Time to move on to the legal jargons.

The declaration sought

1.    The declaration sought by the Respondents was that “Section 66 of the Selangor Syariah Criminal Enactment 1992 is inconsistent with Articles 8(2), 10(1)(a), 9(2) and 5(1) of the Federal Constitution and is therefore void and unconstitutional”.

2.    Two things are borne out from the above, first, the declaration sought was one that the impugned law was inconsistent with the Federal Constitution. Secondly, no mention what so ever was made to the power of the State in enacting the impugned law.

3.    In simple words, the Respondents position was this: the State had the power to enact the impugned law, but that power had been exercised unconstitutionally as the impugned law contravenes certain provisions in the Federal Constitution.

Powers of the High Court

4.    That the High Court has the power to declare any law unconstitutional, was expressly stated in the Federal Court decision of Ah Thian v Government of Malaysia [1976] 2 MLJ 112 (“Ah Thian”). This was the very case that the Federal Court in the Transgender case had relied on to say otherwise. The relevant part of the judgment is reproduced below:

“Under our Constitution written law may be invalid on one of these grounds:

(1) in the case of Federal written law, because it relates to a matter with respect to which Parliament has no power to make law, and in the case of State written law, because it relates to a matter which respect to which the State legislature has no power to make law, article 74; or

(2) in the case of both Federal and State written law, because it is inconsistent with the Constitution, see article 4(1); or

(3) in the case of State written law, because it is inconsistent with Federal law, article 75.

The court has power to declare any Federal or State law invalid on any of the above three grounds.

The court's power to declare any law invalid on grounds (2) and (3) is not subject to any restrictions, and may be exercised by any court in the land and in any proceeding whether it be started by Government or by an individual.”

5.    As noted above, the Transgender case concerned ground (2) (inconsistency with the Federal Constitution). It is pertinent to note three important phrases from the last paragraph, “not subject to any restriction”, “exercised by any court” and “any proceeding”. This alone should suffice to answer the question on whether a High Court can declare a law to be unconstitutional in a judicial review proceeding. Unfortunately the very same excerpt of the judgment was relied upon by the Federal Court in the Transgender case to say otherwise.

6.    The question in Ah Thian was whether Section 5 of the Firearms (Increased Penalties) Act 1971 contravened Article 8(1) of the Federal Constitution. This is similar to the declaration sought in the Transgender case. This is what Federal Court said in Ah Thian:

“Therefore clause (4) of article 4 and clause (1) of article 128 do not apply and the point may be raised in the ordinary way in the course of submission, and determined in the High Court, without reference to the Federal Court, and there is no need for leave of a judge of the Federal Court.”

7.    The passage above should put any doubts to rest. It is only when ground (1) is invoked that the special procedure laid down in Articles 4(3), 4(4) and 128 of the Federal Constitution come into play.

8.    The High Court’s inherent power to declare any law unconstitutional in a judicial review proceeding was clearly explained by the Court of Appeal in the first reported case concerning the new provision on judicial review. The decision is reported as Sivarasa Rasiah v Badan Peguam Malaysia [2002] 2 MLJ 413 and concerned the constitutionality of Section 46A of the Legal Profession Act 1976.

The Federal Court decision

9.    The Federal Court then relied on the case of Abdul Karim Bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171. As clearly expressed in the decision of the court, this case concerned the existence of the State’s power in making the relevant law. The relevant line reads:

“It is the contention of the applicant that the State Assembly is not empowered to make laws with respect to a matter of disqualification.”

10. All the apex court decisions cited by the Federal Court concerned the power of Parliament and the State to make laws. In particular, it goes to the question of the existence of the power under Article 74 and the 9^th Schedule of the Federal Constitution, which is why Article 4(3) and 4(4) comes into play in those cases. None of them talk about the exercise of such power.

11. The Federal Court then made the following observation:

“What the Respondents attempted to do was to limit the legislative powers of the State Legislature, by saying that despite the powers to legislate on matters on Islamic law having been given to the State legislature by Article 74 of the Federal Constitution read with List II in the Ninth Schedule to the Federal Constitution, that legislation must still comply with the provisions on fundamental liberties in Articles 5(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution.”

12. The above was not even an issue to begin with. In fact, as conceded by the Federal Court, the powers of the State to legislate on Islamic law stems from Article 74 of the Federal Constitution. Article 74(3) reads:

“(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.”

13. Article 4(1) of the Federal Constitution reads:

“4. (1) 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.”

14. I don’t think the above two provisions can be any clearer. Islamic law is State law. As such, it must be consistent with the provisions of the Constitution (same applies to federal law). The question on whether it has to comply with Part II of the Federal Constitution is a non-issue. This was only made an issue when the Appellants had applied for leave to appeal to the Federal Court.

15. Any argument using Article 3 of the Federal Constitution (Islam as the religion of the Federation) to posit that Islam is above Part II of the Federal Constitution does not hold any ground. Sub-article (4) of the same Article provides:

“(4) Nothing in this Article derogates from any other provision of this Constitution.”

16. It is very sad and disturbing that we have now come to a point where express constitutional provisions entrenching the principle of constitutional supremacy are being mutilated. It is fitting to end this article with the words of Suffian, Lord President, in Ah Thian, which is still being used by the courts with approval (the irony):

“The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.”