Confronting The Constitutionality of Hudud — Malik Imtiaz Sarwar & Surendra Ananth

CONFRONTING THE CONSTITUTIONALITY OF HUDUD
Malayan Law Journal Article Supplement Volume 4, [2016] 4 MLJ xii

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya


INTRODUCTION

On 25 November 1993, the Kelantan State Legislature had unanimously passed the Syariah Criminal Code II 1993 (‘1993 Enactment’).1 The aim of the 1993 Enactment was to introduce a broader scheme of Islamic criminal law than had been hitherto established in Kelantan or any other state in the Federation and which overlapped with the federal criminal law framework.

Unsurprisingly, the 1993 Enactment engendered controversy on several fronts. It was contended that the said enactment was unconstitutional for, amongst other things, attempting to create a parallel criminal law system that went beyond the limited scope of the Islamic personal law framework permitted by the Federal Constitution (‘the Constitution’), this exercise involving a usurpation of Parliament’s exclusive legislative authority over matters of criminal law in the public sphere.2 It was also contended that the offences that the Kelantan State Legislature had created were offences that were not reflective of the offences under Syariah Law that were meant to be the basis of the enacted offences.3 Read more

Confronting The Constitutionality of Hudud — Malik Imtiaz Sarwar & Surendra Ananth

CONFRONTING THE CONSTITUTIONALITY OF HUDUD
Malayan Law Journal Article Supplement Volume 4, [2016] 4 MLJ xii

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya

pdf

 

INTRODUCTION

On 25 November 1993, the Kelantan State Legislature had unanimously passed the Syariah Criminal Code II 1993 (‘1993 Enactment’).1 The aim of the 1993 Enactment was to introduce a broader scheme of Islamic criminal law than had been hitherto established in Kelantan or any other state in the Federation and which overlapped with the federal criminal law framework.

Unsurprisingly, the 1993 Enactment engendered controversy on several fronts. It was contended that the said enactment was unconstitutional for, amongst other things, attempting to create a parallel criminal law system that went beyond the limited scope of the Islamic personal law framework permitted by the Federal Constitution (‘the Constitution’), this exercise involving a usurpation of Parliament’s exclusive legislative authority over matters of criminal law in the public sphere.2 It was also contended that the offences that the Kelantan State Legislature had created were offences that were not reflective of the offences under Syariah Law that were meant to be the basis of the enacted offences.3 Read more

The National Security Council Bill: A Colorable Exercise of Power — Malik Imtiaz Sarwar & Surendra Ananth

THE NATIONAL SECURITY COUNCIL BILL:
A COLORABLE EXERCISE OF POWER
[2016] 2 MLJ cxix

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya[1]

 

INTRODUCTION

The National Security Council Bill 2015 (the ‘Bill’) was moved by the Minister in the Prime Minister’s Department, Dato’ Seri Shahidan bin Kassim, on 1 December 2015, in the Dewan Rakyat. In moving the Bill, the Minister invoked art 74(1) of the Federal Constitution (‘the Constitution’) and positioned the Bill as concerning matters that were within the Federal List under the Ninth Schedule of the Constitution. The Bill was passed by the Dewan Rakyat on 3 December 2015 and was subsequently passed by the Dewan Negara on 22 December 2015. In the ordinary course, by virtue of art 66(4A) of the Constitution, the Bill would have become law on 21 January 2016. However, for reasons that are not immediately apparent, the Bill was placed before the Conference of Rulers, which has since remitted the Bill back to the Government for review. The nature of their review sought has not been made public.[2]

The passage of the Bill through Parliament was not without controversy.[3] For immediate purpose the most relevant concerns raised by parties opposed to the Bill were whether the Bill was constitutional in light of provisions of the Bill allowing for the contravention of guaranteed fundamental liberties under Part II of the Constitution, and whether the Bill allowed for the usurpation of the exclusive powers of the Yang di-Pertuan Agong (‘YDPA’) under art 150 of the Constitution.

Close consideration of the Bill reveals that the said concerns are not misplaced. It further becomes evident that, additionally, the Bill violates the Constitution for having been enacted in a manner not countenanced by the same.

This article seeks to support these conclusions by demonstrating that the legislative power under art 74 of the Constitution could not have been justifiably invoked for the enacting of the Bill, or any law of a nature similar to it. It will be shown that key provisions of the Bill infringe Part II of the Constitution, and that Parliament could only enact a law containing such provisions as exceptional legislation under arts 149 or 150(5) of the Constitution. It will also be shown that the effect of the Bill is to unlawfully arrogate powers that are exclusively vested in the YDPA by art 150 of the Constitution to the Executive. Finally, in light of these mattes, it will be argued that the Bill is the product of a colorable exercise of power by Parliament. Read more

The National Security Council Bill: A Colorable Exercise of Power — Malik Imtiaz Sarwar & Surendra Ananth

THE NATIONAL SECURITY COUNCIL BILL:
A COLORABLE EXERCISE OF POWER
[2016] 2 MLJ cxix

by

MALIK IMTIAZ SARWAR

LLB (Hons) IIUM; LLM (HK); M St (Oxon)
Advocate and Solicitor, High Court of Malaya

and

SURENDRA ANANTH

LLB (Hons) UKM
Advocate and Solicitor, High Court of Malaya[1]

 

pdfINTRODUCTION

The National Security Council Bill 2015 (the ‘Bill’) was moved by the Minister in the Prime Minister’s Department, Dato’ Seri Shahidan bin Kassim, on 1 December 2015, in the Dewan Rakyat. In moving the Bill, the Minister invoked art 74(1) of the Federal Constitution (‘the Constitution’) and positioned the Bill as concerning matters that were within the Federal List under the Ninth Schedule of the Constitution. The Bill was passed by the Dewan Rakyat on 3 December 2015 and was subsequently passed by the Dewan Negara on 22 December 2015. In the ordinary course, by virtue of art 66(4A) of the Constitution, the Bill would have become law on 21 January 2016. However, for reasons that are not immediately apparent, the Bill was placed before the Conference of Rulers, which has since remitted the Bill back to the Government for review. The nature of their review sought has not been made public.[2]

The passage of the Bill through Parliament was not without controversy.[3] For immediate purpose the most relevant concerns raised by parties opposed to the Bill were whether the Bill was constitutional in light of provisions of the Bill allowing for the contravention of guaranteed fundamental liberties under Part II of the Constitution, and whether the Bill allowed for the usurpation of the exclusive powers of the Yang di-Pertuan Agong (‘YDPA’) under art 150 of the Constitution.

Close consideration of the Bill reveals that the said concerns are not misplaced. It further becomes evident that, additionally, the Bill violates the Constitution for having been enacted in a manner not countenanced by the same.

This article seeks to support these conclusions by demonstrating that the legislative power under art 74 of the Constitution could not have been justifiably invoked for the enacting of the Bill, or any law of a nature similar to it. It will be shown that key provisions of the Bill infringe Part II of the Constitution, and that Parliament could only enact a law containing such provisions as exceptional legislation under arts 149 or 150(5) of the Constitution. It will also be shown that the effect of the Bill is to unlawfully arrogate powers that are exclusively vested in the YDPA by art 150 of the Constitution to the Executive. Finally, in light of these mattes, it will be argued that the Bill is the product of a colorable exercise of power by Parliament. Read more