Apex court has power to overturn conflicting laws


KUALA LUMPUR: The Federal Court, the country’s highest court, has the power to overturn syariah laws and civil laws if they conflict with the Federal Constitution, say lawyers, who stressed that this has been done several times recently.

Among them were Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013; Section 498 of the Penal Code where a man entices a married woman, and Section 37A of the Dangerous Drugs Act 1952.

The lawyers said this following the Federal Court’s decision on Feb 9, to nullify several provisions in Kelantan’s Syariah Criminal code.

“If there is a dispute involving states or between any state and the federation, the Federal Court can hear the dispute,” said Malaysia Legal and Human Rights Practitioners Association (ProGuam) president, Noorazmir Zakaria.

“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 told Bernama yesterday.

In the Federal Court’s, 8-1 majority decision, 16 provisions in the Kelantan Syariah Criminal Code Enactment 2019, were declared unconstitutional.

The apex court ruled that the State Legislature does not have the power to enact laws on those 16 offences as there are federal laws covering them.

The decision sparked a public debate on the roles and powers of the state legislatures to pass laws with supporters of the Kelantan government decrying the verdict.

Echoing Noorazmir’s opinion was lawyer Siti Nor Syahidah Ismail.

An example of a federal law that was ruled unconstitutional last year was Section 498 of the Penal Code, which makes it a crime for a man to entice a married woman.

In the Dec 15 decision, the apex court held that the section was unconstitutional because it “unlawfully discriminates only on the grounds of gender”, which violates of Article 8(2) of the Constitution.

In April 2019, the Federal Court also repealed Section 37A of the Dangerous Drugs Act, which allows “double presumption” to be used to convict someone accused of drug trafficking.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 Section 37A violates the presumption of innocence since it permits the conviction of an accused despite the possibility of reasonable doubt.

Despite the Federal Court’s wide jurisdiction, however, it can be restricted in certain types of laws and cases, said lawyer Datuk Firoz Hussein Ahmad Jamaluddin.

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