Monday, 21 Feb 2022 06:08
PM MYT
BY IDA LIM
KUALA LUMPUR, Feb 21 — The
Shariah Lawyers Association of Malaysia (PGSM) today called for the Federal
Constitution to be amended in order to empower state governments to make laws
to give Shariah courts the power to exercise judicial review.
Earlier today, a
nine-judge panel at the Federal Court — including the chief justice and also
the top three judges in Malaysia — had unanimously declared that Section 66A in
a Selangor state law was unconstitutional as the Selangor state legislative
assembly did not have the power to make that law to give judicial review powers
to Shariah courts.
Section 66A of the
Administration of the Religion of Islam (State of Selangor) Enactment 2003 is
the Selangor state law that attempted to give Shariah courts in Selangor the
power to hear and decide judicial reviews on decisions made by those such as
the Selangor Islamic religious council (Mais) and Selangor’s fatwa committee.
This is what Section 66A —
which was struck down as invalid today by the Federal Court — states: “The
Syariah High Court, may, in the interest of justice, on the application of any
person, have the jurisdiction to grant permission and hear the application for
judicial review on the decision made by the Majlis or committees carrying out
the functions under this Enactment.”
Section 66A, however, does
not make specific references to what these decisions would cover, such as
whether it would involve fatwas issued by Selangor’s fatwa committee or Mais.
The Federal Court pointed
out that it had in several other court cases already made clear that it is
solely the civil courts that have the power to exercise judicial review, while
pointing out that the Federal Constitution itself does not enable state
legislative assemblies to make laws to give judicial review powers to the
Shariah courts.
In a statement, PGSM
president Musa Awang today described the Federal Court’s decision as a decision
that Shariah courts do not have the power to make judicial reviews on fatwa
(otherwise known as religious opinions) issued by state Islamic authorities.
Musa then went on to urge
for the Federal Constitution to be changed in order to ultimately enable the
Shariah courts to be able to carry out judicial review on decisions made by
state Islamic bodies.
“PGSM urges the Federal
Government to take a long-term approach to amend Item 1, List II (State List)
of the Ninth Schedule of the Federal Constitution to give powers to the State
Government to have laws to give power to the State Shariah Court to carry out
judicial review powers on any decisions made by the State Islamic Religious
Council or committees that carry out functions under state Shariah laws,
including by state fatwa committees,” he said.
Musa insisted that the
Shariah courts should have judicial review powers when it comes to decisions
made by state Islamic religious councils or by state fatwa committees, arguing
that Shariah courts are the “appropriate and competent forum as it involves
parties among those who are of the religion Islam and revolves around hukum
syarak”. The term “hukum syarak” refers to Islamic laws.
“In order to implement
that amendment, PGSM urges the Federal Government to form a Special Committee
to study and propose that Federal Constitution amendment,” he said.
Chief Justice Tun Tengku
Maimun Tuan Mat delivered the nine-judge panel’s decision which recognised that
judicial review powers belong solely to the civil courts.
Chief Justice Tun Tengku
Maimun Tuan Mat delivered the nine-judge panel’s decision which recognised that
judicial review powers belong solely to the civil courts.
Earlier today, the Federal
Court had already explained however that only the civil courts have the power
to carry out judicial review, to determine whether laws are valid by being
consistent with the Federal Constitution and to determine for example whether
decisions or exercise of public law powers (or exercise of powers by public
authorities or public bodies) for being illegal or failing to follow procedures.
The Federal Court had also
highlighted the difference between the making of a fatwa — or the procedures
and laws to be complied with in the process of making a fatwa — and the fatwa’s
substantive contents or what the fatwa actually says.
The Federal Court made it
clear that it is still purely for the Shariah courts to decide on a fatwa’s
contents and its interpretation to the extent that such matters involve “hukum
syarak” (Islamic law) or personal law and not about matters involving contradictions
with any written law — federal law, state law or the Federal Constitution.
But when it comes to
situations such as whether a fatwa committee’s conduct or fatwa complied with
procedures, the Federal Court said this would be for the civil courts to
decide.
In examining the powers
given under Section 7 of the 2003 Selangor enactment to Mais, the Federal Court
noted that Mais’ powers clearly go beyond what could be considered as involving
Islamic doctrines or being part of substantive Islamic law, but had instead
crossed quite clearly into public law and involving public law powers.
Section 7 lists Mais’ duty
of promoting economic and social development of Muslims in Selangor, as well as
its powers to carry out activities involving the development of commercial and
industrial enterprises and to give out loans or work together with others for
such purposes, to make investments, to establish higher education loan schemes
for Muslims, to establish and maintain Islamic schools and Islamic training and
research institutions, and to establish and manage welfare home for orphans.
In other words, Shariah
courts would still be the appropriate courts to decide on matters directly
involving Islamic law, but civil courts would still be the only courts that
have judicial review powers or the power to review whether decisions and
actions and powers exercised by a public body are lawful and valid.
https://www.malaymail.com/news/malaysia/2022/02/21/after-federal-courts-decision-shariah-lawyers-want-federal-constitution-cha/2042958?fbclid=IwAR1VthpKY8qu68gMX_oHkBPm0wXZi5MIAXamJ1Xpu6E86hIu-etcT-3Clac
