Malaysian Chief Justice: Legislative Power Must Have Limits

Former Chief Justice Tun Tengku Maimun Tuan Mat has asserted that all legislative powers must be subject to limitations to prevent the arbitrary exercise of discretion and potential abuse. Speaking at the National University of Malaysia (UKM), she stressed that individuals holding statutory positions are bound to exercise their authority within the framework of the law.

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Every legislative power must have its limits. Someone holding any office created by statute is only entitled to exercise jurisdiction according to legal guidelines.

Tengku Maimun clarified that discretionary power should not be interpreted as absolute freedom. "If discretion is used to justify unreasonable actions or for purposes other than intended, then it is no longer discretion, but abuse of power," she stated during the event, which was also attended by the Yang di-Pertuan Besar of Negeri Sembilan, Tuanku Muhriz Tuanku Munawir, and Tunku Ampuan Besar, Tuanku Aishah Rohani Tengku Besar Mahmud.

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If discretion is used to justify unreasonable actions or for purposes other than intended, then it is no longer discretion, but abuse of power.

The principle of legally bounded power is evident in court decisions that delineate the scope of legislative bodies. Tengku Maimun referenced the Federal Court's February 9, 2024, ruling on the Nik Elin Zurina Nik Abdul Rashid case concerning Kelantan's Syariah Criminal Code Enactment 2019. The court declared 16 provisions invalid, finding that the Kelantan State Legislative Assembly exceeded its authority in enacting them.

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I must take this opportunity to explain and clarify that the decision was not an act by the court to undermine the sanctity of Islam or weaken the position of the Syariah Court, as per the false narratives being peddled and aggressively played by certain parties to gain cheap support and public sentiment.

She took the opportunity to address what she called "false narratives" suggesting the ruling undermined Islam or the Syariah Court. Tengku Maimun explained that the decision was based on a challenge to legislative competence, specifically that the Kelantan State Legislative Assembly encroached upon the Parliament's exclusive jurisdiction over criminal law. The court, in this instance, acted as an arbiter to correct these jurisdictional boundaries within the constitutional framework.

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The decision in the Nik Elin case was based on the principle of a challenge to competence. In that case, the Kelantan State Legislative Assembly was found to have exceeded its jurisdiction by enacting general criminal laws, which, under the Constitution, falls exclusively under the jurisdiction of Parliament. The court merely acted as an arbiter correcting these boundaries of power.