The
Malaysian Bar views with grave concern the amendment made to the Mufti
and Fatwa (Kedah Darul Aman) Enactment 2008 (“Enactment”) passed
recently by the Kedah state legislative assembly. 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.
The
amendment also goes against the doctrine of separation of powers. In a
modern democratic framework, each of the three main branches of
Government — the Legislature, the Executive and the Judiciary — has its
respective role. The raison d'être of this doctrine is 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.
The
Malaysian Bar reminds members of the Kedah legislative assembly of the
oath they took 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.
Lim Chee Wee
President
Malaysian Bar
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