Bar Council says unconstitutional for Islamic laws to skip legislative approval

By Boo Su-Lyn

May 14, 2011

 

KUALA LUMPUR, May 14 — The Bar Council has dismissed a call by Muslim lawyers for Islamic laws to be legislated solely by the Malay Rulers instead of Parliament, saying it is unconstitutional.

Bar Council president Lim Chee Wee said all laws have to be passed by elected members of Parliament and the respective state assemblies as Malaysia is a constitutional democracy.

“This is a fundamental and basic structure of the federal constitution,” Lim (picture) told The Malaysian Insider via e-mail last night.

“Such fundamental and basic structure cannot be bypassed,” he stressed.
He said the Malaysia Muslim Lawyers Association’s (PPMM) proposed memorandum to the government contradicted the legislative process and the federal constitution.

He also pointed out that matters pertaining to Islamic law are enacted by the state legislative assembly, except for the Federal Territories of Kuala Lumpur and Putrajaya which are under the purview of Parliament.

“This is provided under Article 74 read together with the Second List set out in the Ninth Schedule in the federal constitution,” said Lim.

“Thus, legislative powers as regard Islamic law are generally under the state’s legislative jurisdiction,” he said, adding that certain laws like the Syariah Courts (Criminal Jurisdiction) Act 1965 was passed by Parliament.
Lim also said the constitution did not make a distinction between the type of laws that Parliament was empowered to make.

He said Article 66(1) stated that the “power of Parliament to make laws” shall be exercised by Bills passed by the Dewan Rakyat and Senate.

Utusan Malaysia recently reported PPMM president Datuk Zainul Rijal Abu Bakar as saying that his proposal was to avoid debate by non-Muslims on Islamic laws.

Zainul Rijal suggested that proposed laws or Bills be approved by the Conference of Rulers or the Yang di-Pertuan Agong before they are presented to the Cabinet and Parliament for mere endorsement.

The Muslim lawyer also said the Bills do not need to be debated in their first and second reading as they have already been approved by the Conference of Rulers.

Zainul Rijal added that his proposal would put Article 11(3) of the federal constitution into effect for Muslims to administer their own religious affairs exclusively.

Lim, however, called Zainul Rijal’s use of the mentioned article “wholly misplaced”.

“The said provision does not allow religious groups (in this case, Islamic groups) the right to legislate Islamic laws,” said the senior lawyer.

“The power lies with the respective legislative bodies (either State Legislative Assembly or Parliament as the case may be) and does not and cannot be extended in the context put forth by Mr Zainul,” Lim added.
He pointed out that if Article 11(3) were to be interpreted in the extreme, any religious group may make laws as they please and thus spark “legislative anarchy”.

“Article 11(3) of the federal constitution provides that every religious group has the right to ‘acquire and own property and hold and administer it in accordance with the law’,” said Lim.

“‘Administer’ under the said provision must be read in the context of the whole provision... ‘it’ refers to ‘property’, not ‘administering their religion’ (which is a wider and incorrect interpretation),” he added.
PPMM’s proposal came even as a raging debate swirls over whether Muslim-majority Malaysia can be headed by a non-Muslim prime minister.

Some Malay-Muslim groups have been pushing the view that the constitution proclaims Islam to be its “official” religion and that only a Muslim can be the prime minister.

Barisan Nasional (BN) Cabinet member Tan Sri Bernard Dompok said recently, however, that there was nothing wrong with a Christian prime minister, pointing out that the federal constitution has never made race or religion a criteria.