Judicial review power for Selangor Shariah High Court ‘unconstitutional’


Free Malaysia Today 21 Feb 2022

PUTRAJAYA: A nine-member bench of the Federal Court today unanimously declared that it is unconstitutional for the Selangor legislative assembly to pass a provision to confer judicial review power to the Shariah High Court in the state.

Chief Justice Tengku Maimun Tuan Mat said Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, as it stands, is also unconstitutional.

“I find Section 66A, as it stands, is unconstitutional and void as it is a provision the legislative assembly has no power to make,” she said of the unanimous ruling.

As such, she said, the petition filed by SIS Forum Malaysia is allowed and the declaration is granted, pursuant to the Courts of Judicature Act.

SIS filed the application in the Federal Court on Jan 21, 2020 after the High Court in Kuala Lumpur dismissed its judicial review application against the Selangor religious authority’s fatwa labelling the group “deviant”.

The bench, however, did not order costs as the matter was of public interest.

The other members on the bench were Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Vernon Ong, Zaleha Yusof, Harmindar Singh Dhaliwal and Rhodzariah Bujang.

Tengku Maimun said that as decided by a number of previous Federal Court rulings, the judicial review power was vested only in the civil court.

“In the Federal List of the Federal Constitution, such power is vested in the civil court to check the power of public authorities,” she said.

She said judicial review was the co-tenant of the rule of law, and separation of powers, and a check and balance on the excesses of the executive and the legislature.

Section 66A in its present form, she said, clearly possessed the power of judicial review as intended by the Selangor state legislature.

“That was the legislative intent in enacting Section 66A to give judicial power to the Shariah High Court,” she said.

Tengku Maimun said it was the duty of the Federal Court to strike down the provision and leave it to the state legislature to re-enact it in consonant with the State List.

“The doctrine of blowing down cannot be done on Section 66A,” she said.

SIS, a company registered and run by Muslims, went to the apex court to challenge the competency of the state assembly to pass the provision that allows the state religious court to review fatwas issued by the state religious authorities.

It sought a declaration that the state legislature cannot pass Section 66A, which states that the Shariah High Court in the state has the jurisdiction to hear judicial reviews against the decisions of state religious councils or committees.

SIS argued that any judicial review of a law passed by Parliament and the state assemblies could only be heard before a civil High Court.

SIS lawyer Malik Imtiaz Sarwar, in an immediate response, said today’s decision was extremely important as it made clear the demarcation between the civil courts and the shariah courts, as well as the limits on the state legislative assemblies when enacting “so- called ” Islamic laws.

“The decision is welcome for making clear, and reiterating that, the constitutional design of our federal system reposes judicial power exclusively in the civil courts,” said Malik, who was assisted by Fahri Azzat, N Surendra Ananth and Ameirul Aizat.

He said the ruling reiterated that the civil courts were the guardians of the constitution, the supreme law of the land.

Malik said the decision had gone a long way to clear up many of the ambiguities that had been so divisive in last two decades.