Syariah Appeal Council: Destruction of the Basic Structure of our Constitution

Dato Seri Jamil Khir announced last month that a plan to set up a Syariah Appeal Council (“SAC”) with equal powers to that of the civil Federal Court was almost finished. Many lawyers and academicians criticised the move as it was deemed unconstitutional. I share the same view and I shall lay down the reasons on why such a system cannot be carried out in Malaysia.

We shall look at: first, the power of the civil courts; secondly, the power of the Syariah Courts; thirdly, the nature of our Constitution; and fourthly, why such a plan can’t be carried out.

Civil courts

The superior civil courts act as guardians of the Constitution. Their powers are derived from the Constitution itself and also relevant federal laws. The Constitution provides the High Court with “judicial powers” which has been widely defined by our courts. The removal of the said phrase after the 1988 amendment does not in any way impair the courts of its judicial power (see Public Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1).

The High Court’s power to safeguard the Constitution can be discerned from Section 25, 30 and the Schedule of the Courts of Judicature Act 1964, and also Order 53 of the Rules of Court 2012.

The High Court also has inherent powers pursuant to its inherent jurisdiction. This power refers to the “common law powers of the court, which are residuary or reserve powers and a separate and distinct source of jurisdiction from the statutory powers of the court” (see R. Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145).

The Federal Court has, apart from the powers above, exclusive jurisdiction over certain constitutional matters as stated in Article 128 of the Constitution. What is important to note is that, the civil courts draw their power from the Constitution.

Syariah Courts

Unlike the civil courts, the Syariah Courts owe their existence to the State legislature. It only comes into existence when the State makes law to establish it pursuant to the State list under the 9^th Schedule of the Constitution. In that regard, the position of the Syariah Courts are akin to that of the Sessions Courts and Magistrates’ Courts which are inferior courts (see Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101).

Therefore, the powers that can be conferred onto the Syariah Courts are limited to what is provide for under the State list. This does not include the jurisdiction to decide on constitutional matters.

Nature of our Constitution

It is well established that our Constitution is secular in nature. Historical documents such as the Reid Commission report, the 1957 White Paper and the Cobbold Commission report clearly show this.  This was judicially crystalized by the Supreme Court in Che Omar v Public Prosecutor [1988] 2 MLJ 55. For the exact wordings of the historical documents, do refer to my previous article (http://surendraananth.blogspot.com/2014/12/position-of-islamic-law-in-malaysia-in_14.html).

Setting up a SAC with Equivalent Powers

Now, just to make things clear, if the intended powers the SAC are limited to what is provided for under State list, then there wouldn’t be a problem.

The problem arises with the phrase, “equal powers”. To create a SAC which has equal powers with the superior civil courts, a constitutional amendment is definitely needed. I believe this has been stated by many lawyers.

It is my opinion that such an amendment cannot be made to the Constitution, as it destroys the basic structure of the Constitution. The Indian Supreme Court in Kesavananda Bharati v State of Kerala [1973] AIR SC 1461 regarded the following features as fundamental and thus, are non-amendable:

1.      Supremacy of the Constitution;

2.      Republican and democratic form of government;

3.      Secular character of the Constitution;

4.      Separation of powers between legislative, executive and judiciary;

5.      Federal character of the Constitution.

We are concerned with item 3 in the above list. The basic structure doctrine was recognised in Sivarasa Rasiah v Badan Peguam Malaysia [2010] 2 MLJ 333, where our Federal Court referred to the Indian Supreme Court decision above.

It is very clear that the civil courts are superior to the Syariah Courts. To create a SAC which has equal powers to the superior civil courts is akin to destroying the very fabric of the Constitution. Such an amendment would definitely mutate the secular nature of the Constitution.

It is true that our Constitution is a living document which is not carved in stone. However, an amendment of such magnitude would create a completely different document altogether. The Constitution permits an amendment, but not a revamp.