Federal Court has jurisdiction to overturn civil, syariah laws if conflicting with constitution, say lawyers

KUALA LUMPUR: The Federal Court, the country’s highest court, has jurisdiction to overturn civil laws and Syariah laws if they conflict with the Federal Constitution.

In recent times, in its landmark decisions, the Federal Court had declared several civil laws as unconstitutional.

Among them were Sections 3 and 7 of the Pension Adjustment (Amendment) Act 2013; Section 498 of the Penal Code related to the case of a man who entices a married woman, and the drug case involving a provision under the Dangerous Drugs Act 1952.

On Friday (Feb 9), the Federal Court, in an 8-1 majority decision, ruled that 16 provisions of offences under the Kelantan Syariah Criminal Code Enactment (1) 2019, were null and void, on the grounds that the State Legislature did not have the power to enact laws on said offences, because there were federal laws covering the same.

The Federal Court made the ruling after allowing a petition, filed by Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Nastasha Abdul Rahman, to challenge the constitutionality and legality of 18 provisions of offences under the enactment.

The Malaysia Legal and Human Rights Practitioners Association (ProGuam) president, Noorazmir Zakaria, was of the view that the Federal Court had jurisdiction to decide disputes related to the interpretation of any provision in the Federal Constitution, in addition to hearing appeals.

“If there is a dispute involving states or between any state and the federation, the Federal Court can hear the dispute.

“Similarly, if there is any challenge related to a written law which is said to be in conflict with the Federal Constitution or related to the interpretation of the Federal Court, it can be brought to the relevant court,” he said, when contacted by BK on Sunday (Feb 11).

He said that laws enacted by Parliament could also be challenged in the Federal Court if they conflicted with the Federal Constitution.

Lawyer Datuk Firoz Hussein Ahmad Jamaluddin said that the Federal Court’s role was to interpret the Federal Constitution in relation to criminal, civil and Syariah law.

“The Federal Court does not have the jurisdiction to decide a case in the Syariah Court, for example, a divorce case, as it is under the jurisdiction of the Syariah Court,” he said.

Echoing his sentiment was lawyer Siti Nor Syahidah Ismail, who said that the Federal Court had jurisdiction to decide the validity of a law enacted by Parliament or any state.

On June 27 last year, the Federal Court ruled that Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013, were null and void as they were less favourable to pensioners.

Then, on Dec 15 last year, the highest court in the country also repealed Section 498 of the Penal Code, which made it a crime for a man to entice a married woman, after ruling it unconstitutional.

The court held that the section was unconstitutional because it “unlawfully discriminates only on the grounds of gender, which is violative of Article 8(2)” of the Federal Constitution.

On April 5, 2019, the Federal Court also repealed Section 37A of the Dangerous Drugs Act, which allowed the ‘double presumption’ to be used to convict someone accused of drug trafficking.

The court ruled that Section 37A contradicts the Federal Constitution because it violates Article 5(1), read together with Article 8(1).

Article 5 (1) stipulates that no person shall be deprived of his life or personal liberty save in accordance with law, while Article 8 (1) states that all people are equal before the law and are entitled to equal protection under the law.

The court held that the section violates the presumption of innocence since it permits the conviction of an accused despite the possibility of reasonable doubt. – BK