Case: YB khalid bin Abdul Samad V Majlis Agama Islam Selangor (2016) MLJ 388

JUDGMENT

Mohd Yazid Mustafa J:

[1] On 31 March 2016, I dismissed the applicant's application for leave to commence judicial review
proceeding under O 53 Rules of Court 2012. The grounds of my decision are as follows.

[2] The brief facts of the case is simple and straight forward. The applicant was charged in Klang
Syariah Subordinate Court under s 119 Enakmen Pentadbiran Agama Islam (Selangor) for an offence
teaching without tauliah at Surau Taman Semanta, Klang Selangor Darul Ehsan on 16 August 2011.
At the end of the prosecution case, the court found that the prosecution had proven a prima facie
case against the applicant. The applicant was called upon to enter defence.

[3] Subsequently, the applicant filed an application for leave to commence judicial review seeking
the following relief:

i. A declaration that s 119(1) of the Administration of the Religion of Islam (State of Selangor)
Enactment 2003 (Enactment 2003) is unconstitutional as it contravenes arts 11(1) and (4) of the
Federal Constitution and therefore void pursuant to art 4(1) of the Federal Constitution;

ii. An order of certiorari to quash the charge preferred against the applicant at the Klang Syariah
Subordinate Court for an offence under s 119(1) of Enactment 2003; and

iii. A prohibitory order to stop the respondent from proceeding with the prosecution against the
applicant at the Syariah Court

[4] The grounds relied upon by the applicant to support the above relief are as follows:

i. Section 119(1) of Enactment 2003 violates the applicant's freedom of religion envisaged in art
11(1) of the Federal Constitution;

ii. The propagation of religion under art 11(1) of the Federal Constitution is only limited to a non-
Muslim propagating a religious doctrine among Muslims as provided under s 11(4) of the Federal
Constitution;
 iii. A state law cannot limit the applicant's right to propagate the religion of Islam among Muslims
pursuant to arts 11(1) and (4) of the Federal Constitution.

iv. Section 119(1) is ultra viresarts 11(1) and (4) of the Federal Constitution.

Reasons

[5] The applicant's counsel submitted that the validity of s 119(1) of Enactment 2003 is to be
challenged not on the basis that the state legislative has no power to make law. The counsel
emphasise that the question for the court to decide is whether the case falls under the preview of
art 4(3) and art 4(4) of the Federal Constitution.

[6] I disagree with the learned counsel for the respondent and I find the issue to be determined in
this case relates to the jurisdiction of the court. The applicant's argument that the legislation of the
Islamic Law passed by the State Legislative must comply with the provisions of the fundamental
liberties of the Federal Constitution is devoid of merit.

[7] In the circumstances, I am of the opinion that the art 4(3) and art 4(4) does not apply.
Accordingly, the High Court has no original jurisdiction to determine the issue because the subject
matter falls within the jurisdiction of the Syariah Court pursuant to art 121(1A) of the Federal
Constitution.

[8] It is a trite law that the validity or constitutionality of the law could be not be questioned by way
of collateral attack in a judicial review proceeding except by way of quotation or reference to the
Federal Court. Arifin Zakaria CJ, in the recent decision of Titular Roman Catholic Archbishop Of Kuala
Lumpur v. Menteri Dalam Negeri & Ors [2014] 4 MLRA 205; [2014] 4 MLJ 765; [2014] 6 CLJ 541, held:

"[42] The effect of cl (3) and (4) of art 4 as explained by the Supreme Court in Abdul Karim Abdul
Ghani is that the validity or constitutionality of the law could not be questioned by way collateral
attack, as was done in the present case. This is to prevent any frivolous or vexatious challenge being
made on the relevant legislation. Clause (3) of art 4 provides that the validity or constitutionality of
the relevant legislation may only be questioned in proceedings for a declaration that the legislation
is invalid. And cl (4) of art 4 stipulates that such proceedings shall not be commenced without the
leave of a judge of the Federal Court. This procedure was followed in a number of cases (see Fathul
Bari Mat Jahya, Sulaiman Takrib v. Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) &
Other Cases [2008] 3 MLRA 257; [2009] 6 MLJ 354; [2009] 2 CLJ 54 and Mamat Daud & Ors v. The
Government of Malaysia [1986] 1 MLRA 108; [1986] 2 MLJ 192; [1986] CLJ 190)."
[9] The principle involved in leave application is that the applicant must show prima facie that the
application is not frivolous or vexatious and that there is some substance in the grounds supporting
the application (case of Association Of Bank Officers Peninsular Malaysia v. Malayan Commercial
Banks Association [1990] 1 MLRA 324; [1990] 3 MLJ 228; [1990] 1 CLJ 33).

[10] I also find that this application is designed to cause delay in the proceeding in the Syariah Court
as opposed to seeking a genuine relief before this court.

[11] Based on the above reasons, I find that the leave application is clearly impractical or
inconvenient and abuse of process as the reliefs sought either in the form of a declaration or an
order of certiorari or prohibitory order is clearly without merits.