Keep Malaysian constitutional law on the slippery slope | Taiwan News


KUALA LUMPUR, MALAYSIA – Media OutReach – November 29, 2021 – Malaysian law firm Surenda Ananth Advocates & Solicitors today issues a statement on the impact of constitutional law on Malaysia and Malaysians following the recent ban on food stores. 4D lottery in the northern state of Kedah.

Kedah Chief Minister Datuk Seri Muhammad Sanusi Md Nor justified his actions with the statewide ban and reportedly said: “As Muslim and head of state, he has the obligation to adhere to God’s instruction and he does not want to be questioned in the hereafter“.

Malaysian lawyer Surendra Ananth says many may not know it, but it was this concern that led to the first written compilation of violations of Muslim law in Malaysia (then, the Federated States of Malaysia). On October 10, 1898, at a meeting of the Pahang State Council, the then Sultan of Pahang urged the British governor to take responsibility for drafting a Muslim law.

The minutes of the Council of State record: “His Highness says that he is getting old, and that the thought of his responsibility in this matter fills him with dread due to the fact that he will soon be called to account to God for all his actions and for his neglect to the respect for His Highness says that he is sure that if the government realizes its position on the matter, and the immense importance that this matter must have in its eyes, it will find a way to punish the crimes it appointed, and will thus relieve him of the burden of a moral responsibility which he finds himself completely unable to bear ”.

Despite criticism, in 1904, a law drafted by the British was passed in all the states. It was generally called the promulgation of the laws of Muhammad. There were 9 offenses included and this only applied when all parties were Muslim. The number of Muslim offenses has increased over the years. The power of states to commit such offenses was eventually codified in the Federal Constitution.

On November 1, 2021, the Chief Minister of Kedah, Datuk Seri Muhammad Sanusi Md Nor received the “Dato ‘Sri Paduka Mahkota Kedah” (SPMK) award, which bears the title “Datuk Seri”, from the hands of Sultan Kedah Sallehuddin Sultan Badlishah commemorating his 79th birthday.

On November 8, Malaysia’s High Court ordered the new Datuk Seri to pay a Member of Parliament (MP) RM 50,000 for a defamatory video posted on Facebook two years ago of protesters outside a Toto Sports store holding a banner the name of the deputy.

On November 17, the same Datuk Seri announced at a state assembly that the Kedah state government had decided to ban all 4D lottery shops in the state. This was to be done by local councils by rejecting any license renewal request.

Surendra reiterates that this ban is not issued under any Islamic law. Islamic law, which is made by states, can only apply to people professing the religion of Islam and is limited to matters of personal law. The ban is implemented indirectly by ordering local councils in Kedah State to deny license renewal applications by entities operating lotteries.

“This is illegal because lotteries fall under the federal list in the Ninth Schedule of the Federal Constitution, which means that Parliament and the federal government regulate lotteries and gambling. Malaysia’s 1952 Lottery Act declares lotteries illegal unless authorized by the Minister of Finance. regulate these premises on limited matters such as hours of operation, security or location of business, but a state cannot impose an outright ban on lotteries and gambling, ”says Surendra.

“Second, and more importantly, a state authority when making a decision under a secular law that applies to all people, cannot make such a decision on the sole basis of Islam. . The government is a government of all people and not just Muslims, ”he said. .

Regarding violations of Islamic law, a state cannot use such laws to prohibit gambling or lotteries. The number of violations of Islamic law in each state has increased dramatically. For example, in the state of Selangor there are more than 30 Islamic offenses. Most of these provisions are unconstitutional. Although the state can create Islamic offenses on matters against the precepts of Islam, there is an important restriction imposed by the Federal Constitution. Even if a subject is prohibited in Islam, it cannot be considered an offense if the same subjects fall under the Federal List.

“Issues such as lotteries, criminal law, public order, health and alcoholic beverages are all on the federal list. Most of the offenses recently introduced in the Kelantan Syariah Penal Code, such as destruction of places of worship, tattooing, surgery claims, etc., are unconstitutional. They are all on the federal list, ”Surendra said.

Most, if not all, of the Hudud offenses introduced in the Kelantan Syariah Penal Code in 2015 are unconstitutional. They include theft, robbery, adultery, sodomy, false accusation of adultery, alcohol consumption, homicide, bodily harm, etc. All of these matters are on the federal list and have in fact been considered offenses under federal law.

Leaving aside the issue of legislative power, Surendra Ananth added that there are also Islamic laws that violate fundamental rights guaranteed by the Federal Constitution. He cites the case of Nur Sajat as a good example. Around February 2021, an arrest warrant was issued for the Malaysian cosmetics entrepreneur who earlier that year was charged with cross-dressing under the Selangor Syariah Criminal Offenses (Selangor) Act 1995. This provision violates clearly the right to dignity, self-reliance and freedom of expression. Nur Sajat was granted asylum in Australia. It has been reported that Malaysia is considering an extradition request to Australia. This will most likely be dismissed if requested on the basis of the charge in the Sharia court.

“The power of states to commit Islamic offenses is limited only to personal religious offenses. This is the constitutional framework.

It is evident that some state governments are expanding the role of Islam in ways not contemplated by the Federal Constitution. While some may disagree with vice, tolerating or supporting such bans is a slippery slope that we should not descend, ”concluded Surendra Ananth, a Malaysian lawyer passionate about creating discourse on civil litigation, the law. Commercial, Constitutional Law, Administrative Law and Alternative Dispute Resolution in Malaysia.

Most constitutional law cases involve challenges against the government. There are not many lawyers who deal with such cases. Surendra hopes that by speaking out, more lawyers will take up such challenges to ensure that the rights of the individual are protected. He was admitted to practice as an attorney and attorney at the High Court of Malaysia in July 2015. He appears in various public interest and civil litigation cases at all levels of the Court. He is also a member of the Malaysian Bar Council.

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