The Sabah Law Society (“SLS”) is troubled to read a report that the law minister has urged parties not to challenge state Syariah laws. The SLS takes the firm stand that all parties are entitled to challenge the constitutionality of laws enacted in Malaysia, whether they be State or Federal laws. This is a hallmark of a democracy and the people should not be deterred to seek recourse with the Courts.
The Federal Court had recently held that a Selangor Syariah law was invalid. This decision was by no means an attack on Syariah law. The Federal Constitution was, through that decision, upheld by the Federal Court. The core of the decision is uncontroversial. Matters which are under the Federal List in the Federal Constitution are for Parliament to legislate upon, and matters which are under the State List in the Federal Constitution are for the States to legislate upon. Clearly therefore, any laws enacted by the States in relation to matters contained in the Federal List are invalid. The States simply have no power to legislate in relation to such matters. This is a fairly rudimentary principle and the law minister would – or should – be entirely aware of the same.
The SLS applauds the willingness of the Federal Court to uphold the basic tenets of the Federal Constitution, notwithstanding the potential for misunderstanding by members of the public or politicisation by politicians, who may not appreciate the context of the decision. In the premises, it would be irresponsible for anyone to characterise the decision of the Federal Court as an attack on Syariah law, and go further to discourage similar challenges.
The provisions of the Federal Constitution must be upheld at all times. Although there may be concerns as to perception which should be managed with tact and diplomacy, ultimately the rule of law and the provisions of the Federal Constitution must always be preserved and upheld.
The SLS encourages public interest litigation and challenges to the constitutionality of any laws passed – whether State or Federal – throughout the country. It is only through challenge that laws can truly be described as ‘tried and tested’. If laws are validly passed, no party should fear a challenge to the constitutionality of the same, and nobody should be seen to discourage such challenges.
Roger Chin
President
Sabah Law Society
