Karpal points out constitutional glitch by top judges

 

KUALA LUMPUR, July 6 — Veteran lawyer Karpal Singh said today three Federal Court judges had unwittingly acted unconstitutionally by “collectively” allowing two Muslims to challenge the laws of a state.

The DAP national chairman said the Federal Constitution states that the decision for leave should have been made by single judge.

“What is singular cannot be made plural,” Karpal (picture) said in a statement.

Yesterday, the panel of three judges granted leave for cleric Fathul Bari Mat Jahya, 30, and architect Nik Amirul Faiz Nik Md Yusof, 25, to challenge Negri Sembilan state laws requiring them to have tauliah or accreditation to teach Islam.

The duo are seeking a declaration that section 53 (1) of the Syariah Criminal Enactment (Negri Sembilan) 1992 as amended by section 3 of the same law is null and void because it contradicts the Federal Constitution.

But Karpal pointed out that Article 4(4) of the Federal Constitution states that proceedings for declaration that a law is invalid have to be granted by a judge of the Federal Court.

“Not a three-member panel of the Federal Court,” said Karpal.

It was reported that Court of Appeal president Alaudin Mohd Sherif, along with Federal Court judges Zulkefli Ahmad Makinudin and James Foong, had granted leave to the men.

Karpal said he was surprised by the oversight by lawyers representing the men and pointed out that the Attorney-General’s Chambers should have objected.

“But the judges themselves should have known,” he said.

However, he described the oversight as a “genuine mistake” because most applications for leave are decided by a panel of three judges.

Karpal cited a previous case, Ah Thian vs Government of Malaysia, to illustrate his point.

In the 1978 case, he had sought leave to declare section 5 of the Firearms (Increase Penalties) Act 1971 ultra vires of Article 8(1) of the Federal Constitution.

He said former Lord President Tun Mohamed Suffian Hashim heard the application alone as a judge of the Federal Court.

“In the public interest, the Federal Court should review its decision,” said Karpal.

He pointed out it would be a waste of public funds to have the matter proceed further in breach of Article 4(4) of the Federal Constitution.