M’sian Bar: All legislation must adhere to Federal Constitution

PETALING JAYA: The Syariah and Harmonisation of Law division must ensure all legislation adhere to the Federal Constitution and “ouster clauses” that exclude court jurisdictions be removed, says the Malaysian Bar.

Its chairman George Varughese said the setting-up of the division as announced by the Attorney-General’s Chambers (AGC) was a step in the right direction to harmonise civil and syariah laws to “overcome conflict of jurisdiction between both courts”.

“It is of paramount importance that the AGC ensures that all legislation should not run foul of the Federal Constitution,” he said yesterday.

On Friday, the AGC announced the settingup of the division to address issues pertaining to Islam and syariah law that may arise at the federal and international level.

The division aims to harmonise civil and syariah laws to “overcome conflict of jurisdiction between both courts” and address syariah-related issues “in a more effective manner, in line with current needs”.

The setting-up of the division comes days after the apex court declared the conversion of M. Indira Gandhi’s three children to Islam by her ex-husband Muhammad Riduan Abdullah as null and void.

Varughese also said the Federal Constitution and the Law Reform (Marriage & Divorce) Act must be amended.

This is to give certainty to the decision of the Federal Court in the Indira Gandhi case that both parents must consent to the conversion of minors, he added.

He also said as the Federal Court had held

These legislation must also be amended forthwith to remove all such clauses.

George Varughese

that the power of judicial review is vested in the courts, “ouster clauses” (clauses which exclude the jurisdiction of the courts) in all federal and state legislation are therefore unconstitutional.

“These legislation must also be amended forthwith to remove all such clauses,” he added.

Malaysian Muslim Lawyers Association president Datuk Zainul Rijal Abu Bakar said the setting-up of the division was nothing new as previously, all matters related to syariah-related issues were handled by the Syariah Unit.

“Maybe because of growing demand, the unit has now become a division,” he said.

He said there was also no encroachment on the state jurisdiction as the division would only advise on matters relating to Islam in the Federal Territories only.

Zainul Rijal said the Federal Constitution, via Ninth Schedule List 1 Item 4(k), provides for the Government to have jurisdiction on Islamic law other than personal law at the federal level.

The federal laws involved include the Traditional And Complementary Medicine Act, which allows the use of Islamic medicine, the Islamic Banking Act and Tabung Haji Act 1995, he said.