PUTRAJAYA: It was a historic moment at the Palace of Justice here today when for the first time a nine-member Federal Court bench presided to determine the constitutionality of a Shariah Advisory Council’s (SAC) ruling which purportedly binds the High Court in a commercial dispute.
The panel chaired by Chief Justice of Malaysia Tan Sri Richard Malanjum entered the courtroom about 9.30am to hear the matter between Kuwait Finance House (M) Berhad (KFH) and JRI Resources Sdn Bhd (JRI) and its three guarantors.
Other members of the bench were - Court of Appeal president Tan Sri Ahmad Maarop, Chief Judge of Malaya Tan Sri Zaharah Ibrahim, Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah, Federal Court Judges Tan Sri Ramli Ali, Tan Sri Azahar Mohamed, Tan Sri Mohd Zawawi Salleh, Datuk Alizatul Khair Osman Khairuddin, and Court of Appeal Judge Tan Sri Idrus Harun.
It was reported in July that Malanjum has purposed that all constitutional cases in the Federal Court be heard by a bench of nine members comprising four senior judges and five Federal Court judges.
The proceedings involved a reference by JRI, a shipping company, to the Federal Court over the constitutionality of Section 56, 57, and 58 of the Central Bank of Malaysia Act 2009 which states that the ruling by SAC binds the Civil High Court in Shariah matters.
Earlier, counsel Datuk Malik Intiaz Sarwar, who represented JRI, in his submission said SAC has been given a role in legal proceedings relating to Islamic financial business.
“By virtue of section 56 and 57, this role goes beyond the function of ascertaining Islamic Law on any question of Shariah that arises in a dispute before a High Court.
“Thus, by compelling the High Court to refer questions of Shariah to the SAC and then biding the High Court with the ruling of the SAC, these provisions effectively usurp judicial function and power,” he said.
However, counsel Yoong Sin Min, who represented KFH, submitted that the role of SAC was only to determine whether the business was a syariah compliant.
“It does not effect the judgment or fact of the case in the High Court,” she said.
Dispute between both companies arose when KFH alleged JRI and three others had failed to make payments to KFH under Islamic banking facilities.
The court reserved its judgment to another date.