Powerless* - Nelly Furtado

Ultra vires - beyond the scope or in excess of legal power or authority
(Definition from Merriam-Webster online)

Do you know that it is possible for some laws to be illegal? That sounds like a paradox, doesn't it? Let me elaborate.

The Federal Constitution is the supreme law of the law. Article 4(1) provides as follows:-

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Putting it simply, it is the law! All other laws derive its validity from the Federal Constitution. So let's say for instance, the Constitution says that all men must wear green shirts. If the Parliament decides to pass a new law which allows men to wear red shirts, that particular law will not be "legal". The Parliament is said to have acted "...beyond the scope or in excess of its legal power" - it has acted ultra vires as It has no power to do so. It is powerless. After all, the Parliament derives its power from the Constitution.

There was a decision of the Malaysian Court of Appeal which was reported in the newspapers today. Basically, a husband converted to Islam. The wife applied to the Civil courts for an injunction regarding some family law matters. Unfortunately for her, the Court of Appeal held that she has to seek her remedy not in the Civil Courts but in the Islamic Courts - the Syariah Court. The headlines in the News Straits Times summed it up clearly in the first line of its report: - "A non-Muslim married to a person who has converted to Islam has to seek remedy in the syariah court over family matters" (read the whole report here).

It was almost an open and shut case. The Court simply refered to the Islamic Family Law (Federal Territories) Act 1984 which provides that "...in the event one of the parties converted to Islam, it must be administratively dissolved by a syariah court".

With that, the Court of Appeal washed its hands and told the non-Muslim woman to go to the Syariah Court.

But wait a minute - Gopal Sri Ram JCA did not agree, altho to his Lordship, it appears to be an open and shut case too. His Lordship held that since the Federal Constitution expressly provided that the Syariah Court "...shall have jurisdiction only over person professing the religion of Islam" (emphasis added), the said provision of the Islamic Family Law refered by the other learned Judges is ultra vires the Constitution since it purports to confer to the Syariah Court jurisdiction over non-Islam persons.

That makes sense, doesn't it? Read his views here.

Putting it simply:-

• Constitution says Syariah Courts only have jurisdiction over Islam persons;
• Islamic Family Law says that in a marriage, if one of the spouse is a Muslim, then Syariah Courts have jurisdiction over both spouses for the purposes of dissolution;
• In effect, the Syariah Court will have jurisdiction over the non-Islam spouse - this clearly is not allowed by the Consitution;

Well, anyways, the matter will be appealed to the Federal Court and as such, it'll be sub-judice to discuss the matter now.

But Sri Ram's view makes sense, doesn't it????

*The song where Nelly describes how she was once asked by a record company to hide her ancestry. Love this song - brilliant vocals and the banjo adds a nice touch to it.