Studying the case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor , I came across an Article of the Federal Constitution of Malaysia that attracts my attention.
The Article is Article 76, which explains about “the power of Parliament to legislate for states in certain cases”.
Clause 2 of Article 76 or Article 76(2) says:
(2) No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government of any State concerned has been consulted.
Paragraph (a) of Clause (1),
Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say— for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member
This Article is interesting because it says that in matters related to the “Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak”, no laws shall be introduced into either House of Parliament until the Government of any State concerned has been consulted.
Hence, I think that the Yang di-Pertuan Agong and the Sultans as the heads of states, have the rights to give the final says in the making of laws regarding these important matters and not the parliament.
This Article is precisely harmonious with Article 3 that says the Sultans are the Head of the religion of Islam in their respective states and Yang di-Pertuan Agong as the Head of the religion of Islam in that states without Sultan, and Article 153 where the Yang di-Pertuan Agong “shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak”.
The human rights activists are lobbying the United Nations Human Rights Council (UNHRC) to force the government of Malaysia to sign and to fully ratify some treaties and conventions that are against the teaching of Islam, the State laws, the Federal Constitution and the National Principals of Malaysia such as Article 18 of ICCPR, Article 14 of CRC, SOGI, and ICERD.
Can the parliament enact new laws to nullify the State laws regarding the matter?
I think it is the States and not the parliament that have the power to enact new laws in order to ratify the conventions because the enforcement of Islamic law on Muslim citizens is decided independently by each state.
The judgments by the Federal Court in the case of ZI Publications Sdn Bhd and Another v Kerajaan Negeri Selangor and the case of Negeri Sembilan’s transgenders supported these facts.