RAMLI BIN GHANI v KEMENTERIAN KESIHATAN MALAYSIA & ANOR [2022] 3 MLJ 674
FEDERAL COURT CONSTITUTIONAL LAW – LEGISLATIVE COMPETENCE |
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Facts |
1. The Applicant who works as a practitioner of Islamic Medicine sought to commence proceedings in the Federal Court under Article 4(3) and (4) of the Federal Constitution (‘FC’) seeking a declaration that the Traditional and Complementary Medicine Act 2016 (‘Act 775’) was null and void.
2. The core argument by the Applicant is that the Act 775 has infringed upon his right to practice Islamic medicine which contains the recitation of Quranic verses as well as other religious practices.
3. The Applicant contended that the Parliament has no power to enact the Act because matters related to the application of Islamic verses and Syariah falls within the exclusive jurisdiction of the States Legislatures under item 1 of the State List, Ninth Schedule of the FC.
4. On the other hand, the Respondent argued that the Parliament indeed has the power to enact the Act 775. The justification provided by the Respondent is that matters relating to health, medicine and medical profession are listed under the item 14 of the Federal List in the FC.
5. The Respondent also asserted that the Act 755 was enacted to establish a regulatory framework relating to medical practices and not to forbid anyone from engaging in any religion or traditional practices related to Islamic medicine. Hence, the laws not intervene with the precepts of Islam.
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Issue |
Does the Parliament have the authority and power to enact Act 775?
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Ratio |
Does the Parliament have the authority and power to enact the Act 775?
(a) Article 74 of the Federal Constitution (‘FC’) outline the framework for legislative powers between Parliament and State Legislatures. Article 74(1) and (2) of the FC provides as follows :
(b) The above provisions enunciated that the legislative power between the Federal and State governments in Malaysia is clearly outlined and limited by specific provisions in the Ninth Schedule of the FC. The Ninth Schedule enumerates the subjects on which matter the Federal and State governments can legislate, providing a framework for the division of powers.
(c) In this present case, the Court had emphasized the broad definitions of the terms ‘medicine’ and ‘health’ since these terms are not explicitly defined in the FC. The Court held that Islamic medicine and Malay traditional medicine are considered to fall within the scope of the terms ‘medicine’ and ‘health’ since both have a rational connection within the medical aspect and the only distinction lies in the methods and practices applied while conducting the treatment.
(d) The Doctrine of Pith and Substance was used to assess whether the law falls within the class of subject matter related to ‘medicine’ and ‘health.’ True nature, substance, purpose, scope, and effect are the key elements considered in evaluating the constitutionality of legislation using the doctrine of pith and substance. This application of the doctrine aims to clarify whether the law pertains more to health and medicine which is a federal subject, as indicated by the Federal List or encroaches into areas reserved for the states.
(e) By applying the Doctrine of Pith and Substance, the Court held that the true nature and primary objective of the Act 775 is regulatory in nature and not intended to prohibit individuals from carrying out whatever religious or customary practices pertaining to the Islamic law and Malay customs.
(f) There are no provisions in the Act 775 that explicitly forbidding the Applicant from practicing his Islamic medicine based on Quran and Hadith, Syariah laws as well as the customary practice of Malay traditional medicine.
(g) Therefore, the Parliament’s authority to pass legislation pertaining to Islamic medicine and Malay traditional medicine is completely within its purview as provided in Article 74(1) of the FC specifically item 14 of the Federal List.
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Decision |
Leave application dismissed.
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Key Take Away |
1. This is a significant case involving the interpretation of the Ninth Schedule of the FC and the application of the Doctrine of Pith and Substance. In legal matters, particularly those involving the division of jurisdiction between federal and state authorities, the specific language and substance of the legislation must be carefully analyzed to determine the intended scope and application of the law.
2. For example, in this present case, the Applicant being a practitioner of Islamic medicine contended that Act 775 shall be declared null and void simply because Parliament was not competent to pass such legislation as traditional Islamic medicine was expected to be a matter that fell within the exclusive jurisdiction of the State Legislatures.
3. However, it must be noted that the mere use of the word “Islam” may not be sufficient to delineate what form as part of the federal jurisdiction and what form as part of the state jurisdiction. Instead, a careful examination of the actual content and provisions of the legislation is necessary to understand its true purpose and implication.
4. Since Act 775 deals with matters related to health and medicine which are listed under the Federal List in item 14, List 1, Ninth Schedule of the FC, there is no doubt that it falls clearly under the federal legislative authority. The Court, according to the Doctrine of Pith and Substance also has determined that the nature of Act 775 is to establish a framework for the regulation of medical practices which includes Islamic medicine and Malay Traditional medicine without interfering with or regulate matters related to jurisprudence of Islamic law and Malay customs. |