Bar Council: Kedah amendment is unconstitutional
Published: Jun 7, 2012 9:30 AM | Updated: Jun 7, 2012 9:32 AM
The controversial amendment to a fatwa enactment by the Kedah legislative assembly curtailing attempts to question the state’s fatwa (edicts) in any civil or syariah courts is unconstitutional, argued the Bar Council.
The controversial amendment to a fatwa enactment by the Kedah legislative assembly curtailing attempts to question the state’s fatwa (edicts) in any civil or syariah courts is unconstitutional, argued the Bar Council.
Its president Lim Chee Wee, in a statement today, said that the amendment to the Mufti and Fatwa (Kedah Darul Aman) Enactment 2008 goes against the doctrine of separation of powers.
“The amendment inserted an ouster clause into the Enactment by way of Section 22A, which provides that notwithstanding any written law or rule to the contrary, a fatwa decided by a mufti or a fatwa committee, “whether gazetted or not, cannot be challenged, appealed, reviewed, denied or questioned” in any civil or Syariah Court.
“The amendment is unconstitutional, as it purports to oust the jurisdiction of the courts. Article 121 of the federal constitution does not confer upon any state legislative assembly the legislative power to enact laws that exclude the jurisdiction of the courts,” said Lim.
The amendment was passed in April after the endorsement of the Kedah sultan, prior to its tabling at the state assembly.
Explaining, Lim said that in a democratic framework, the legislature, the executive and the judiciary play its respective role, in order to establish a system of checks and balances among the three branches to prevent any form of abuse of power by any branch.
“With the amendment, however, fatwas in Kedah are made absolute,” he said.
Lim reminded the legislative assembly that they have taken an oath to uphold the federal constitution as the “supreme law of the land”.
“This amendment must not become or remain a law of the state, as it is contrary to that oath,” he said.
Its president Lim Chee Wee, in a statement today, said that the amendment to the Mufti and Fatwa (Kedah Darul Aman) Enactment 2008 goes against the doctrine of separation of powers.
“The amendment inserted an ouster clause into the Enactment by way of Section 22A, which provides that notwithstanding any written law or rule to the contrary, a fatwa decided by a mufti or a fatwa committee, “whether gazetted or not, cannot be challenged, appealed, reviewed, denied or questioned” in any civil or Syariah Court.
“The amendment is unconstitutional, as it purports to oust the jurisdiction of the courts. Article 121 of the federal constitution does not confer upon any state legislative assembly the legislative power to enact laws that exclude the jurisdiction of the courts,” said Lim.
The amendment was passed in April after the endorsement of the Kedah sultan, prior to its tabling at the state assembly.
Explaining, Lim said that in a democratic framework, the legislature, the executive and the judiciary play its respective role, in order to establish a system of checks and balances among the three branches to prevent any form of abuse of power by any branch.
“With the amendment, however, fatwas in Kedah are made absolute,” he said.
Lim reminded the legislative assembly that they have taken an oath to uphold the federal constitution as the “supreme law of the land”.
“This amendment must not become or remain a law of the state, as it is contrary to that oath,” he said.
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