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 9th 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.”