In the recently issued Federal Court case of SIS Forum (Malaysia) v Kerajaan Negeri Selangor & Anor, the apex court with a full quorum of 9 judges had the occasion to exercise its original jurisdiction to determine a constitutional challenge brought by the petitioner, SIS Forum (Malaysia) to strike down section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (“ARIE 2003”) enacted by the Selangor State Legislative Assembly (“SLLA”).
Section 66A of the ARIE 2003, which essentially sought to confer on the Syariah High Court the power of judicial review, stipulates: –
“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.”
The ‘Majlis’ whose decision is intended to be subject to judicial review by the Syariah High Court is the Majlis Agama Islam Selangor, a body established by the ARIE 2003.
The Federal Court in finding for the petitioner unanimously ruled that section 66A of the ARIE 2003 is invalid on the ground that it makes provision with respect to a matter to which the Legislature of the State of Selangor has no power to make, and as such, the said provision is unconstitutional, null and void.
The petition arose out of a decision of the Civil High Court in an application for judicial review wherein the petitioner (the applicant therein) sought to challenge the validity of a fatwa gazetted on 31.7.2014 that inter alia provides for offences of any publications, both printed and that published on social media, that promote liberalism and pluralism of religion.
High Court proceedings
The judicial review application was dismissed by the Civil High Court on the ground that the High Court was dispossessed of any jurisdiction to consider the validity of the fatwa, and that the question should instead be posed and determined by the Syariah High Court in accordance with section 66A of the ARIE 2003. This finding led to the petitioner applying for leave, which was duly granted, to bring its petition before the Federal Court to challenge the validity of the impugned legislation.
Federal Court findings
In its judgment, the Federal Court made it clear that the petition only concerns the question of whether the SSLA was empowered to enact section 66A of the ARIE 2003, and that the court is not concerned with the procedural or substantive validity of the fatwa.
It is in this context that the Federal Court went on to examine the concept of judicial review, which according to the Federal Court constitutes a fundamental aspect of judicial power of the Federation that remains reposed solely in the Civil Courts.
In this regard, the Federal Court opined that the jurisdiction for constitutional judicial review was intended to be conferred on the Civil Superior Courts by way of the general empowering provision in clause (1) of Article 4 of the Federal Constitution (“FC”). Constitutional judicial review is said to be ingrained within clause (1) of Article 4 of the FC, which stipulates that the FC being supreme, any law inconsistent with it is void to the extent of the inconsistency.
Corollary to this is that the Civil Federal Judiciary being the final interpreter and independent protector of the FC with the concomitant power to review execution action, is the only body capable of exercising review powers over the constitutional validity of laws.
The Federal Court found that section 66A of the ARIE 2003, in its current form, that allows the Syariah High Court to possess powers of judicial review, when such powers are exclusive to the Civil Superior Courts that cannot be abrogated or delegated away, is unconstitutional.
The Federal Court further rejected the respondent’s arguments that judicial review within the context of section 66A of the ARIE 2003 refers only to Syariah law and the Syariah Court’s supervisory powers on that subject matter alone.
In the upshot, the Federal Court reiterated that judicial review is not merely procedural but a substantive and immutable component of judicial power exclusive to the Civil Superior Courts, and proceeded to strike down section 66A of the ARIE 2003.
However, the lingering question of whether a similar legislation that seeks to confer judicial review powers on the Syariah Courts to cover matters of Islamic law only, and not matters within the realm of public law or public law powers like what section 66A was found to so do, is constitutional or otherwise remains open.
This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.
About the Author
Harold Tan Kok Leng
Harold & Lam Partnership