KUALA LUMPUR: There is no need to amend the Federal Constitution to address constitutional challenges surrounding Malaysia's syariah law, said a constitutional law expert.
Emeritus professor Datuk Dr Shad Saleem Faruqi said what's needed instead were amendments to the Syariah Courts Criminal Jurisdiction Act.
He said amending the Constitution would only serve to validate illegalities following the Federal Court's ruling against the 16 provisions of the Kelantan syariah criminal enactment that were deemed unconstitutional.
Shad said the doctrine of ultra vires was a comprehensive principle within administrative and constitutional law.
"It signifies a lack of jurisdiction, meaning you either lack the power entirely, exceeded it, abused it, or did not follow the correct procedure.
"Our chief justice has expanded upon this to include constitutional ultra vires, which indicates a violation of the Constitution, not just a statute," he said.
To resolve the disarray in the current system, Shad said, utilising Article 76(A) of the Constitution to extend legislative powers to the states was one approach, specifically focusing on the need for uniformity in laws.
"These would address activities like betting, gambling and horse-racing, which are forbidden acts for Muslims due to religious reasons, which are much debated.
"So, the federal Parliament can, under 76(A), allow the state to pass a law on that topic subject to some conditions," he said in an interview on the New Straits Times' Beyond the Headlines.
Shad said Malaysia must aim to bring about a more equitable legal system and that the federal government, over time, has not taken sufficient responsibility in the matter.
"State enactments were trespassing on federal jurisdiction. There is no question about that. But in some respects, the federal government abdicated its responsibility," he said.
Article 76 of the Constitution of Malaysia 1957 states that:
(1) It is hereby declared that the power of Parliament to make laws with respect to a matter enumerated in the Federal List includes power to authorise the Legislatures of the States or any of them, subject to such conditions or restrictions (if any) as Parliament may impose, to make laws with respect to the whole or any part of that matter.
(2) Notwithstanding Article 75, a State law made under authority conferred by Act of Parliament as mentioned in Clause (1) may, if and to the extent that the Act so provides, amend or repeal (as regards the State in question) any federal law passed before that Act.
(3) Any matter with respect to which the Legislature of a State is for the time being authorised by Act of Parliament to make laws shall for purposes of Articles 79, 80 and 82 be treated as regards the State in question as if it were a matter enumerated in the Concurrent List.
Lawyer Surendra Ananth, who also joined the panel, said the lack of uniformity in Islamic criminal laws across different states was likely to lead to confusion among Muslims, as they are subjected to varying sets of laws when crossing borders.
"Harmonising these laws throughout the federation is a promising solution, although it requires the consensus and cooperation of all states to adopt uniform laws."
