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2012 MarsdenLR 935
FEDERAL COURT PUTRAJAYA
FATHUL BARI MAT JAHYA & ANOR – Appellant
Versus
MAJLIS AGAMA ISLAM NEGERI SEMBILAN & ORS – Respondent
[Petition No: 3/2010]
The requirement for 'tauliah' in teaching Islam is valid as it protects Islamic integrity and falls within the State Legislature's authority, emphasizing the jurisdiction of Syariah courts over such offences.
Headnote:(A) Federal Constitution - Articles 4(4), 74(2), and 128(1)(a) - Syariah Criminal Enactment (Negeri Sembilan) 1992, as amended - Constitutionality of section 53(1) challenged on grounds that State legislature exceeded authority and that Syariah court lacks jurisdiction - The court clarified that State laws must align with the Federal Constitution and the legislature's authority is limited - Section 53(1) falls within the purview of the State Legislature as it pertains to offences against Islamic precepts. (Paras 3, 24, 28)
(B) The term 'precepts of Islam' must be given a broad interpretation to encompass all aspects of Islamic teaching regulation - The requirement of 'tauliah' serves to protect the integrity of Islamic teachings and is not contrary to the principles of Islam. (Paras 11, 24)
(C) Concept of maslahah as a guiding principle in governance, which aligns with Islamic precepts, justifies the requirement of 'tauliah'. (Paras 13, 26)
Facts of the case:
Petitioners sought declarations that section 53(1) of the Syariah Criminal Enactment is void and that the Syariah court lacks jurisdiction over the offence of teaching religion without a 'tauliah'. The petitioner was charged for conducting a religious talk without the necessary authorization.
Findings of Court:
The court upheld the validity of section 53(1) as it aligns with powers granted by the Federal Constitution, affirming the jurisdiction of the Syariah court in this matter.
Issues: The central issues included the legislative authority of the State in enacting section 53(1) and whether the Syariah court has jurisdiction to try the relevant offences under it.
Ratio Decidendi: The court reasoned that the 'tauliah' requirement is necessary for maintaining the integrity of Islamic teachings and preventing deviant practices, thus valid within the legislative framework.
Result: Petition dismissed.
| Table of Content |
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| 1. petitioners filed for constitutional reliefs. (Para 1 , 1 , 2) |
| 2. challenge against the constitutionality of s 53(1). (Para 3 , 6) |
| 3. provision of s 53(1) concerning teaching without a 'tauliah'. (Para 4 , 5) |
| 4. exploration of legislative powers under federal constitution. (Para 7 , 8) |
| 5. jurisdiction of federal court on invalidity of laws. (Para 9 , 10) |
| 6. interpretation of 'precepts' of islam. (Para 11 , 12) |
| 7. experts' views on the requirement of 'tauliah'. (Para 15 , 16 , 17 , 18) |
| 8. wide interpretation of legislative powers. (Para 19 , 20 , 21) |
| 9. legislative authority for teaching and precepts of islam. (Para 24) |
[1] This petition was filed pursuant to art 4(4) of the Federal Constitution for which leave was granted by this court on 5 July 2010. The petitioners herein seek the following reliefs:
"(i) for a declaration that s 53(1) of the Syariah Criminal Enactment (Negeri Sembilan) 1992 (Enactment No 4 Year 1992) as amended by s 3 of the Syariah Criminal Enactment (Negeri Sembilan) (Amendment) 2004 (Enactment 3 Year 2004) is null and void as being contrary to the Federal Constitution ;
(ii) for a declaration that the Syariah court for Negeri Sembilan does not have jurisdiction to try any offence under s 53(1) of the Syariah Criminal Enactment (Negeri Sembilan) 1992 (Enactment No 4 Year 1992) as amended by s 3 of Syariah Criminal Enactment (Negeri Sembilan) (Amendment) 2004 (Enactment 3 Year 2004); and
(iii) for any other declarations or consequential orders that this Honourable court deems fit and just to be given"
[2] The facts giving rise to this petition are briefly as follows. The 1st petitioner was arrested by the enforcement officers of Jabatan Hal Ehwal Agama Islam Negeri Sembilan on 28 February 2010 for conducting a religious talk without a 'tauliah' in the District of Kuala Pilah, Negeri Sembilan. This is an offence under s 53(1) of the Syariah Criminal Enactment (Negeri Sembilan) 1992 ("the Enactment") and he was accordingly charged for the said offence at the Syariah Subordinate court of Negeri Sembilan. The 2nd petitioner was charged for aiding and abetting the 1st petitioner. The charges are still pending before the said court.
[3] The petitioners are challenging the Constitutionality of s 53(1) of the Enactment on the ground that the State Legislature has exceeded its legislative authority in enacting the said section. They further contend that the Syariah court lacks jurisdiction to try the offence under the said section. In support, the petitioners cited the case of Ah Thian v. Government of Malaysia , , where Suffian LP at p 113 observed:
"The doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written Constitution. The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.
Under our Constitution written law may be invalid on one of these grounds:
(1) in the case of Federal written law, because it relates to a matter with respect to which Parliament has no power to make law, and in the case of State written law, because it relates to a matter which respect to which the State legislature has no power to make law, art 74; or
(2) in the case of both Federal and State written law, because it is inconsistent with the Constitution, see art 4(1); or
(3) in the case of State written law, because it is inconsistent with Federal law, art 75.
The court has power to declare any Federal or State law invalid on any of the above three grounds.
The court's power to declare any law invalid on grounds (2) and (3) is not subject to any restrictions, and may be exercised by any court in the land and in any proceeding whether it be started by government or by an individual.
But the power to declare any law invalid on ground (1) is subject to three restrictions prescribed by the Constitution."
[4] We fully agree with the above observation by Suffian LP. Let us now consider what s 53(1) of the Enactment provides. It reads a
