Nine-member Federal Court bench convenes for first time
by Clinton Tan ~ 28 August 2018
Clinton Tan Kian Seng (Partner)
Tel: 603-6201 5678 / Fax: 603-6203 5678
The Federal Court usually hears disputes through a panel of five Federal Court judges. Today is the first time that a panel comprising nine Federal Court judges was empanelled to hear and determine a dispute.
This is a result of a recent direction of the new Chief Justice Tan Sri Richard Malanjum that matters concerning constitutional issues are to be heard by a special panel of nine Federal Court judges. This is to reflect the importance of matters concerning our Federal Constitution.
The constitutional issue placed before the Federal Court today was, in essence, whether sections 56 and 57 of the Central Bank of Malaysia Act 2009 took away the power of the courts to determine legal issues, and therefore are in conflict with the constitution. Under the Federal Constitution, and what is known as the 'doctrine of separation of powers', our courts are vested with the power to determine legal issues. Any attempt to take that power away from the Courts is considered to be against the constitution and should therefore be declared unconstitutional.
The applicant today argued that sections 56 and 57 of the Central Bank of Malaysia Act 2009 gave a body known as the "Shariah Advisory Council" the power to determine the legal issue of whether a contract, or any part of it, is contrary to Islamic laws. This, the applicant argued, effectively deprived the court of its ability to determine that legal issue, and therefore is unconstitutional.
Bank Negara was involved in today's hearing as an 'intervener'. Its lawyer argued that:
- The Shariah Advisory Council does not determine of the entire dispute;
- There ruling given by the Shariah Advisory Council is not final;
- The ruling given by the Shariah Advisory Council is not enforceable; and
- It is the court that ultimately determines the dispute and it is the court's judgment that is final and enforceable.
As such, Bank Negara's lawyer argued that sections 56 and 57 of the Central Bank of Malaysia Act 2009 did not offend the constitution and are good law.
After the hearing which lasted approximately three and a half hours, the Federal Court reserved its decision which will be delivered on another date.