Anis Fatheeni Binti Muhamad Napiah, Universiti Utara Malaysia
Introduction to Malaysia's Dual Legal System
Malaysia's legal system is like a rich tapestry, woven from diverse threads of history and culture. It adopts a dual system, where civil law and Sharia law coexist, each playing a vital role in the lives of its citizens. This unique blend is a legacy of British colonial rule and the country's multicultural heritage. Before the arrival of the British, the law practiced by Malay races was rooted in traditional customs and Islamic law, which influenced personal and family matters. The British introduced common law, which became the foundation of Malaysia's secular legal framework. Upon independence in 1957, Malaysia's constitution recognized Islam as the religion of the Federation while allowing other religions to flourish aligned with Article 3(1) of the Federal Constitution. Tunku Abdul Rahman, Malaysia's first Prime Minister, envisioned a harmonious multicultural society where different legal traditions could thrive. He emphasized the importance of respecting the rule of law, ensuring that the legal system supports democratic principles. Today, civil courts handle general laws for all citizens, while Sharia courts focus on personal and family matters for Muslims.
Malaysia's federal system is built on a delicate balance of power between the federal and state governments, as outlined in the Federal Constitution. Articles 74(1) and (2) serve as the foundation for this division, empowering Parliament to legislate on matters listed in the Federal List and state legislatures on those in the State List. The Ninth Schedule provides clarity on these responsibilities, ensuring a harmonious coexistence of federal and state laws. In cases of inconsistency, Article 75 ensures that federal law takes precedence, maintaining legal consistency across the nation.
The distinction between federal and state laws is crucial in understanding Malaysia's legal framework. Article 160 of the Federal Constitution, read in conjunction with the Ninth Schedule, provides the necessary definitions and distinctions. This article clarifies the scope of federal and state legislative powers, ensuring that laws enacted by both levels of government are consistent with the Constitution. Furthermore, Article 128 plays a pivotal role in resolving disputes over the scope of federal and state powers. By granting the Federal Court exclusive jurisdiction to determine the validity of laws made by Parliament or state legislatures, Article 128 ensures that these laws do not exceed their constitutional limits. This provision maintains the balance of power between federal and state authorities, safeguarding the constitutional framework. Additionally, Article 128(2) empowers the Federal Court to address questions about the effect of any constitutional provision, providing a mechanism for resolving legal ambiguities and ensuring that all laws align with the Constitution. This ensures that the Constitution remains the supreme law of the land, guiding the interpretation and application of federal and state laws with precision and authority.
When examining offences against Islamic precepts, the landmark case of Iki Putra Mubarrak v Kerajaan Selangor[2020] MLJU 1354; [2020] 4 MLJ 213 is particularly relevant. This case highlights the complexities of jurisdictional conflicts between civil and Sharia laws, especially when state laws may encroach upon federal authority. The issue of impugned sections often arises in such contexts, where the question is whether state laws infringe upon federal jurisdiction or violate constitutional provisions. Understanding these dynamics requires a nuanced analysis of both the Federal List and State List, as well as relevant judicial precedents that have shaped Malaysia's legal landscape.
The Basic Structure Doctrine
The Basic Structure Doctrine is a judicial principle that safeguards the fundamental features of a constitution, ensuring that its core principles and values remain intact despite amendments. This doctrine originated in India through the landmark case of Kesavananda Bharati v State of Kerala AIR 1973 Supreme Court 1461, where the Supreme Court held that while Parliament has the power to amend the Constitution, it cannot alter its basic structure. The doctrine evolved as a response to a series of constitutional amendments that threatened to erode the Constitution's foundation, with key cases like Shankari Prasad v Union of India AIR 1951 Supreme Court 458 laying the groundwork for its development. The Basic Structure Doctrine encompasses essential components such as the supremacy of the Constitution, the republican and democratic form of government, and the separation of powers, which are crucial for maintaining the essence of democracy and justice.
In Malaysia, the Basic Structure Doctrine has not been formally adopted, but Malaysian courts have occasionally referenced similar principles in their decisions, particularly when safeguarding core constitutional values. While there is no explicit recognition of the doctrine, judicial precedents have shown an inclination towards protecting fundamental constitutional principles, aligning with the spirit of the Basic Structure Doctrine. Notable cases where the Federal Court has given substantive effect to this doctrine by implication include Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2014] MLJU 1871 where the court asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary, effectively protecting the separation of powers and judicial independence as part of the Constitution's basic structure. This approach suggests that Malaysian courts could implicitly apply similar principles to protect the Constitution's core structure, ensuring that any amendments or laws threatening fundamental constitutional values could be challenged and potentially declared void. The influence of the Basic Structure Doctrine in Malaysia could enhance the judiciary's role in maintaining constitutional integrity and ensuring that the rule of law prevails, thereby fostering a stable and just legal environment.
Facts of the case
The present case is worth to be noted as one of the cases that mark a significant milestone towards the constitutionality power of the Federation and the State. In this case, the appellants (petitioners) sought declaration from the Federal Court that Section 5, 11, 13, 14, 16, 17, 30, 31, 34, 36, 37(1)(a), 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47 and 48 of the Kelantan Syariah Criminal Code (I) Enactment 2019 on which will be regarded afterward as the ‘impugned sections’, were invalid on the ground that there are ultra vires with the Federal Constitution. However, during the oral arguments, the petitioners had withdrawn their challenge against section 5 and 37(1)(a). The principle that federal law takes precedence over state law is deeply rooted in Malaysia's constitutional framework. Article 4(1) of the Federal Constitution clearly stipulates that any law enacted after Merdeka Day which is inconsistent with the Constitution shall be void. Although this provision does not explicitly mention state legislatures, it implicitly covers all laws that may conflict with federal laws or constitutional provisions, as it applies broadly to any legislation inconsistent with the Constitution. This ensures that federal laws maintain their supremacy over state laws in cases of inconsistency, aligning seamlessly with the broader federal structure outlined in Articles 74 and 75 of the Constitution. This framework not only maintains legal harmony but also reinforces the constitutional hierarchy, where federal laws are paramount in resolving jurisdictional conflicts.
Previously, appellants had been granted leave by a single court judge of the Federal Court to file their petition as provided under Article 4(4). Leave of Court can be referred to as a prior permission obtained by the petitioner before filing a petition on which the person will challenge the law under the Federal Court’s original exclusive jurisdiction. It includes the dispute between Federal and State, as well as to seek declaration for invalidating the state legislation on the ground of the contravention with the law passed by the Parliament (which is the main basis of the present petitions). It is also worth noting for public knowledge that exclusive jurisdiction means that these two categories of petitions can only be brought before the Federal Court and not elsewhere. There are few important issues that arise in the present case in which the judgement, along with its reasoning, had been delivered by Chief Justice of Malaysia Tengku Maimun binti Tuan Mat on behalf of the majority.
Whether petitioners had locus standi?
Before we delve further into the first issue dealt by the honourable court, there is a need to firstly have a clear cut definition of locus standi. In general, locus standi can be defined as standing or right of the person to sue. The court further referred to the recent decision by this court in the case of Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829 which the court in this case endorsed the minority judgement of Eusoffe Abdoolcade CJ in the case of Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12. The court adopted a liberal rather than narrow approach in this case by saying that the precedent set in the Lim Kit Siang case is no longer a good law. It was contended that locus standi should be as relaxed as possible to allow any public-spirited person to file a public interest litigation, provided that he has at least some interest in the matter. The court found that there is neither expressed nor implied interpretation within Article 4(3) and 4(4) to suggest that anyone who seeks to challenge the constitutionality of a legal provision must first prove his or her reason per se for bringing up the challenge. As every citizen is entitled to protections provided under the Federal Constitution, there is no constitutional basis to limit the types or category of people to challenge the validity of the law. Thus, the court by majority held that the petitioners had a locus standi to bring the petitions.
Court’s Decision
Section 11 addresses the offense of destroying or defiling places of worship, applicable to both Muslims and non-Muslims. The court determined that this section fundamentally concerns hate crimes, as it aims to penalize actions that disrupt public order and safety among different religious groups. Consequently, it is categorized under general criminal law rather than being a purely religious offense, leading to its classification as void since it falls outside the legislative authority of the State and should be addressed by Parliament.
Section 13 pertains to the offense of selling or giving away children to individuals deemed morally reprehensible, either non-Muslim or Muslim. The court concluded that this section targets religious offenses against Islam, aiming to prevent the spread of non-Islamic faiths and improper practices within Islam. Therefore, it was upheld as constitutional and within the State's legislative powers.
Sections 14, 16, and 17 cover offenses related to sodomy, sexual intercourse with corpses, and sexual acts with non-human entities. The court viewed all these three sections are caught as a whole by the decision of this court in the case of Iki Putra by giving the reasoning that section 14 by pith and substance dealt with sexual intercourse against the order of nature, section 16 features the offence that include buggery with an animal and section 16 deal with necrophilia. Thus, all these provisions are unconstitutional. In addition, by referring to the case of Mamat Bin Daud v Government of Malaysia[1988] 1 MLJ 119, the doctrine of pith and substance provided that once a law in pith and substance falls within a legislative entry, an incidental encroachment on an entry in another list does not affect its validity.
Section 47 addresses incest, defined in relation to prohibited relationships between individuals. The court viewed incest as a general offense that should be governed by federal law due to its implications beyond the Muslim community. Hence, this section was also deemed unconstitutional.
Section 30 deals with offenses involving words that could breach peace. The court held that by pith and substance this section deals with a subject matter that is within state power to control and restrict propagation of any faith other than Islam among Muslim, which falls under the first broad category of ‘precepts of Islam’.The precepts of Islam had been expressly stated in Item I of the State List, Schedule of Federal Constitution which read as follow:
Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public place of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom
The significant example will be the case of Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors 2020] MLJU 1259; [2021] 1 MLJ 120 which noted the restriction of the propagation to Muslims of the Ahamadi belief (a State Declared deviant sect of Muslims). It is on the court view that it is a purely religious offence enacted with a view to restricting the propagation of false doctrines thus the said section is constitutional
Section 31 focuses on sexual harassment. The court ruled that sexual harassment is not confined to religious contexts but is a general criminal offense applicable nationwide. Thus, this section was declared void.
Section 34 addresses offenses related to false documentation and misleading evidence. The court found no constitutional basis for Syariah Courts to independently legislate on these matters, rendering this section unconstitutional.
Section 36 pertains to intoxicating substances. Given the lack of a clear definition for "intoxicating substance" in the law, the court referred to existing definitions and concluded that this section improperly sought to criminalize a broad range of intoxicants among Muslims, thus falling under Parliament's jurisdiction and being deemed unconstitutional.
Section 37(1)(b) relates to gambling activities. The court classified betting and lotteries as matters under federal jurisdiction concerning criminal law, leading to the conclusion that this section is unconstitutional.
Section 39 addresses issues related to measurements and weights. The court determined that this section falls under federal jurisdiction regarding standards for weights and measures, thus rendering it unconstitutional.
Sections 40 and 41 deal with financial transactions contrary to Islamic law and usury. The court noted that Islamic banking falls under federal jurisdiction as per the Federal List provisions; therefore, these sections were declared unconstitutional.
Section 42 concerns the abuse of halal labels. The court found that it pertains to food control regulations under federal law, leading to its classification as unconstitutional.
Finally, Sections 43 through 48 address various offenses related to vice services. The court concluded that these offenses are general criminal matters rather than strictly religious ones; hence, they were collectively deemed unconstitutional.
Conclusion
In conclusion, Malaysia's legal framework is intricately woven with the principles of federalism and constitutional supremacy, forming a robust foundation for governance. Federalism, as outlined in the Federal Constitution, ensures a delicate balance of power between the federal and state governments, with Articles 74 and 75 providing a clear division of legislative authority. This balance is crucial for maintaining harmony and consistency across the nation, fostering an environment where diverse legal traditions can coexist. Constitutional supremacy, as reinforced by Article 4(1), ensures that all laws, whether federal or state, must align with the Constitution, thereby safeguarding the rule of law and protecting individual rights.
From a legal perspective, challenging the constitutionality of laws is a vital process in ensuring that the legal system remains vibrant and responsive to societal needs. It allows for a dynamic interpretation of constitutional provisions, aligning them with evolving societal values while safeguarding core principles. The recent Federal Court decision in the case of Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan highlights the importance of upholding constitutional supremacy and the division of powers between federal and state governments. This decision underscores the need for continued judicial vigilance in protecting the Constitution's integrity. Ultimately, this journey requires a collaborative effort from legal scholars, policymakers, and the judiciary to ensure that Malaysia's legal system remains just and effective in serving its diverse population.
REFERENCES
Federal Constitution
Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12
Iki Putra Bin Mubarrak v Kerajaan Negeri Selangor[2020] MLJU 1354; [2020] 4 MLJ 213
Kelantan Syariah Criminal Code (I) Enactment 2019
Kesavananda Bharati v The State of Kerala AIR 1973 Supreme Court 1461
Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors 2020] MLJU 1259; [2021] 1 MLJ 120
Mamat Bin Daud v Government of Malaysia[1988] 1 MLJ 119
Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] CLJU 232
Shankari Prasad v Union of India AIR 1951 Supreme Court 458
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2014] MLJU 1871
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