Constitutional Separation of Legislative Jurisdiction - Free Essay Example

Constitutional Separation of Legislative Jurisdiction In the case of Latifah v Rosmawati[1], following the death of the deceased, who is the first respondent, the daughter of the deceased along with his second wife had filed a petition for the letters of administration of the deceasedà ¢Ã¢â€š ¬Ã¢â€ž ¢s estate. Meanwhile later, another of his daughter of his second wife was made a joint petitioner. Then, the third wife of the deceased, which is the appellant, and two of her children were also included in the list of the beneficiaries. Subsequently, the appellant had entered a caveat in the deceasedà ¢Ã¢â€š ¬Ã¢â€ž ¢s estate. A dispute had arisen over the moneys in the joint accounts of the deceased with the appellant in the Bumiputra Commerce Bank (à ¢Ã¢â€š ¬Ã‹Å"BCBà ¢Ã¢â€š ¬Ã¢â€ž ¢) and also the Standard Chartered Bank. These joint accounts were included among the assets of the estate of the deceased. However, the appellant had claimed that the monies in the two joint accounts were hers, as it has been given to her by the deceased himself as a gift. The respondents had claimed that they had belonged to the estate of the deceased. The petition was later converted to a writ. It was agreed between the parties that the principal issue to be tried was whether the monies in the joint accounts were the property of the appellant, such monies having been the subject of gifts inter vivos recognizable in Islamic law as à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢ by the deceased to the caveator who is the appellant. The learned High Court judge had ruled that the Islamic law applied for the determination of the issue. Applying what he found to be the Islamic law of à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢ and had the facts before him he ruled that there had been no à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢ or gift of the monies in the joint accounts to the appellant. In the Court of Appeal, the court held that the subject matter of the dispute, which was that of gifts inter vivos or hibah between Muslims was not a probate and administration matter and was within the jurisdiction of the Syariah Courts. Having come to the conclusion, the court then, applying the provisions of art 121(1A) of the Federal Constitution[2] had held that the civil High Court had no jurisdiction over the dispute and the orders made were null and void and have to be set aside. On 16 August 2006 this court granted leave to the appellant to appeal. Held, dismissing the appeal: (1) There had been a petition for a letter of administra tion in the Civil High Court. An issue had arose whether the joint accounts had form part of the estate of the deceased or not which had depended on whether there was a gift inter vivos or not. That gift inter vivos here simply means à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢ (the Islamic law of gifts) was agreed by the parties in the agreed questions posed in the High Court for its decision. In the circumstances, the Court of Appeal was correct to hold that it is the Islamic law of à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢ that applies.[3] (2) It was very clear that the determination whether the assets in question had been given as a valid à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢ by the deceased to the appellant was a matter that falls within the jurisdiction of the syariah court. The Court of Appeal was right on this point. (3) Where a question had arisen as to whether a specific property forms part of the assets of an estate of a deceased person who is a Muslim in a petition for a a dministration letter in the Civil High Court, the answer to which will depend on whether there had been a gift inter vivos or not, that question should be determined in accordance with the Islamic Law of gift inter vivos or also known as à ¢Ã¢â€š ¬Ã‹Å"hibahà ¢Ã¢â€š ¬Ã¢â€ž ¢. The determination of that issue and the beneficiary or beneficiaries which is entitled to it and in what proportion, if relevant, is within the jurisdiction of the Syariah court and the Civil court should give effect to it in the grant of a letter of administration, and also, subsequently, in distributing the estate Abdul Hamid Mohamad, FCJ had pointed out in the case Latifah v Rosmawati that, whereas the Federal Parliament under Article 74 of the Federal Constitution[4] has extensive powers over matters listed in the Federal List (which includes external affairs, defence, internal Security and marriage and divorce), it does not have the power to legislate in the following areas in relation to civil and cri minal law and procedure and the administration of justice, in respect of the constitution and organisation of the syariah courts, in respect of Islamic personal law relating to marriages, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate. Abdul Hamid Mohamad FCJ had also given a number of examples of how the constitutional arrangement under Article 74 had secured fairly clear-cut separation to avoid any conflict in this particular area. His Lordship observed,à ¢Ã¢â€š ¬Ã‹Å"To give a example, while Parliament may make law in relation to marriage and divorce, it is not permitted to make law on the same subject-matter affecting Muslims because it falls under paragraph (ii), as Islamic personal law relating to marriage and divorce. The net effect is that marriage and divorce law of non-Muslims is a matter within the jurisdiction of Parliament to make, while marriage and divorce law of Muslims is a matter within the jurisd iction of the Legislature of a State to make. In these areas, there should be no room for conflict because Parliament, on the one hand, and the state legislatures, on the other, has clearly carved out areas in which they can legislate and clearly stipulated areas in which they cannot legislate. In those circumstances, room for legislative conflict is minimised and reduced. This is therefore a plus point in dealing these matters. Indeed, his Lordship had further observed in case,Latifah v Rosmawatithat if the laws are made by Parliament and state legislatures in strict compliance with the Federal List and State List, there should not be any situation where both courts have jurisdiction over the same issue or matter. However, his Lordship had warned that at one instance where such overlapping and conflicting jurisdictional problem could come about is where state legislatures overreach and make laws which are within the domain of the Federal Parliament. He also went on to say that h e was quite certain that there are such laws but had refused to list them. Thelandmark Federal Court decisionin Latifah Bte Mat Zin handed down in this case is a welcome relief. This decision clearly clarifies the law for both Muslims and non-Muslims, and also clarifies what matters may be properly dealt with by the respective Courts. It has clearly examined the Federal Constitution, its history and previously decided cases, before coming to the conclusions that had been stated. The Bar Council would commend the Federal Court in handing down this timely judgment that gives emphasis to the importance of acting in conformity with the Federal Constitution. The Judgment has also dealt with the effect of the relevant constitutional provisions and the position of the Civil Courts and Syariah Courts under the Constitution, and has also convincingly and satisfactorily resolved the question which is, whether implied power can be a source of jurisdiction in this context. This decision also brings about some certainty (and with that less anxiety and anguish to Muslims and non-Muslims) as to where parties may go and pursue their legal remedies. There is however one possible area of concern. The Federal Court judgment contemplates or conceives a situation where there may be matters that are outside the jurisdiction of both the Civil and the Syariah Courts. Thatà ¢Ã¢â€š ¬Ã¢â€ž ¢s as well, in other words there could be situations where there is no available remedy in either of these courts. This is an issue of access to justice. It is resolved in certain situations which are covered in previous decisions of the Court, for example in Tan Sung Mooi[5], where a decision of the then Supreme Court which held that the Civil Courts would have jurisdiction where one of the parties was a non-Muslim.[6] However it may not be resolved in other situations. This therefore has to be comprehensively addressed either by the Courts or by Parliament as suggested in the Judgment. [1] [2007] 5 MLJ 101. [2] Federal Constitution, art 121(1A). [3] Latifah bte Mat Zin v Rosmawati bte Sharibun Anor [2007] 5 MLJ 101, accessed on 10 Jan 2014, https://ilms.agc.gov.my:88/online/uploaded/fc/LATIFAH%20BTE%20MAT%20ZIN%20v%20ROSMAWATI%20BTE%20SHARIBUN%20%20ANOR%20[2007]%205%20MLJ%20101.pdf [4] Article 74 of the Federal Constitution [5] [1994] [6] The Malaysian Bar(Badan Peguam Malaysia), Ambiga Sreenevasan, President of Malaysian Bar, accessed on 10 Jan 2014, https://www.malaysianbar.org.my/press_statements/press_statement_comment_on_federal_court_decision_in_latifah_bte_mat_zin.html