HOW TO ANSWER

CASE REVIEW
GROUP ASSIGNMENT

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  Review of a case

1. Heading – case name, court & year

Review of a 2. Facts – summarise facts & decisions

Legal Issues – Whether…? (1-3)

case
3.

4. Grounds of Judgment – ratio per judge,

explain why/how court arrived at its
decision

5. Legal Critique – Rule of Law & critical

commentary about the case

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 1. Heading – Mamat bin Daud v Gov of M’sia, [1988] 1 MLJ
119 Supreme Court of Kuala Lumpur
2. Facts – the petitioners had acted as bilal, khatib & imam
at a Friday prayer without being appointed under the
Terengganu Administration of Islamic Law Enactment.
The state legislation which concerns all matters related
to the Islamic religion and the religious courts. Under
Article 4 clause (4) of the Federal Constitution, which

AN EXAMPLE allows for a subject to question the constitutionality of a

particular legislation, the petitioners obtained leave to
file a suit of statutory order, seeking to declare section
298A of the Penal Code – which concerns behaviours
leading to feelings of disharmony, ill-will, hatred or
enmity on the grounds of religion – ultra vires Article 74
clause (1) of the Federal Constitution, which concerns
the legislative boundaries of the Parliament. Court
Decision: In a slim 3-2 majority the court agreed with
the contention & declared the provision - section 298A
of Penal Code invalid.

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  3. Legal Issues – Whether the Federal
AN Parliament has the jurisdiction to enact
section 298A of the Penal Code (doing acts
EXAMPLE which were likely to cause disunity among
persons professing the religion of Islam)?

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  4. Grounds of Judgment – The case was
adjudicated in the Supreme Court of Kuala
Lumpur by a five-member Bench, consisting of
Tun Salleh Abas L.P., alongside George Seah,
Mohamed Azmi, Hashim Yeop A. Sani and
Eusoffe Abdoolcader S.C.J.J. The learned
judges examining section 298A as a whole, it
is, in its pith & substance, a law on the
AN EXAMPLE subject matter of religion with respect to
which only the States have power to legislate
under Article 74.
Section 298A of the Penal Code is a piece of
‘colourable legislation’ in that it pretends to
be a legislation on ‘public order’ when in pith
and substance it is about Islamic religious
offences.

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  4. Grounds of Judgment – The court held by
a majority (Hashim Yeop A. Sani and
Abdoolcader S.C.J.J. dissenting) that the
crux subject matter of section 298A, is
religion veiled under the pretence of it being
a law on public order. As such, it is a law on
a subject matter with respect to which
Parliament has no competency to legislate, as
AN EXAMPLE the power to make laws on religion is
bequeathed only to the State Legislative
Assemblies under Articles 74 and 75 of the
Federal Constitution.
 The impugned section is found to be a
colourable legislation, and is therefore null
and void, except in the Federal Territories.

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  4. Grounds of Judgment – The journey of the
court towards arriving at the said decision
was a treacherous voyage, as the
interpretation of the subject matter of the
impugned section was made difficult by its
vague and broad provisions of offences. The
then Lord President, Tun Salleh Abas,
AN EXAMPLE alongside George Seah and Mohamed Azmi
S.C.J.J. concurred upon close scrutiny and
examination of every subsection of the
impugned section, that it is a colourable
legislation. The pith and substance approach
of judicial interpretation was then applied in
determining the true subject matter of the
legislation.

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  4. Grounds of Judgment – The then Lord
President, Tun Salleh Abas challenged the
basis of the respondent claiming that the
legislation was enacted under ‘public matter’
by questioning the indirect and undefined
method of constituting an offense. In His
AN EXAMPLE Lordship’s view, the impugned section can only
be interpreted, in regards to the religion of
Islam, to concern the practices and
ceremonies of that religion, and as such,
being a law regarding Islamic matters, is
beyond the legislative competency of the
Parliament.

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  4. Grounds of Judgment –In the joint judgement of
Mohamed Azmi and Seah S.C.J.J., they opined that
to determine whether the impugned section falls
within the class of religion or public order, the
substance of the provisions must be given paramount
consideration, and not its outward appearance, for
“no amount of cosmetics used in the legislative make-
up can save it from being struck down for pretending
to be what it is not”. Although subsections (1) and (2)
implies that the legislation is on the subject matter
AN EXAMPLE ‘public order’ in the Federal List, upon examining the
pith and substance of the impugned section, it was
discovered that the offences it sought to deal with
are offences related to religion of Islam, hence
making it a colourable legislation – a legislature that
is purported to act within the limits of its powers,
yet in substance and in reality those powers have
been transgressed, the transgression being veiled by
a mere pretence or disguise (K.C.G. Narayan Deo v
State of Orissa [1953] A.I.R. S.C. 375, 379)

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  4. Grounds of Judgment –However, dissenting judgements
were produced by Hashim Yeop A. Sani and Abdoolcader
S.C.J.J. It was pointed out by Hashim Yeop A. Sani
S.C.J. that the impugned section does not, in any of its
provisions, specify any particular religion. Hence in light of
criminal law, the impugned section falls flawlessly within
item 3(a) - public order - and item 4(h) – creation of
offences – of the Federal List, Ninth Schedule. His
Lordship’s notion was further supported by Abdoolcader
S.C.J., who expressed that “it is the consequence of the

AN EXAMPLE doctrine of pith and substance that once a law ‘in pith and
substance’ falls within a legislative entry, an incidental
encroachment on an entry in another list does not affect
its validity,’. His Lordship then referred to Gallagher v
Lynn [1937] A.C. 863, whereby the impugned statute,
although incidentally affects trade, was not passed in
respect of trade and therefore cannot be said to have
exceeded its legislative proximity. Section 298A, although
concerning matters in the context of Islam, was said to be
passed in regards to public order, and not religion, hence
an accidental infringement onto the State List shall not
render it invalid as law.

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  5.Rule of Law – General provisions of the Federal
legislation (Penal Code) that are on Islamic religious
offences involving Muslims fall under the State
jurisdiction applying the doctrine of constitutional
supremacy and doctrine of pith and substance.
 Legal Critique:This case emphasized the importance
that the separation of legislative power between
the Federation and the States structured within
AN EXAMPLE our Federal Constitution be given paramount
consideration when determining the rightful enactor
of law. Both the Parliament, as well as the State
Legislative Assemblies, shall keep strictly within
the boundaries of their vested competencies. The
issue at hand arises when a particular legislation
appears to be enacted by a party to which
jurisdiction to legislate is not conferred to on that
particular matter.

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  5. Legal Critique:In interpreting the subject matter of
section 298A, I believe that the that the majority
judgement had struck the nail on the head, when
regarded in the context of the religion of Islam. Item
(1) of the State List, Ninth Schedule has explicitly
enumerated all matters to which only State Legislative
Assemblies have the power to legislate. According to
Article 76 clause (2) of the Federal Constitution, the
Parliament is unable to make any laws in regards to

AN EXAMPLE matters of Islamic law, without consulting the

Government of the States. A federal law made in regards
to religion would butt horns with state legislation, and
the absence of state legislation on a particular matter
within the subject itself, does not render permission to
the Parliament to administer laws in regards to such
matters. The decision of declaring the impugned section
as a colourable legislation, in the context of Islam, is an
apt decision indeed, as it eradicated the overlap of
jurisdiction on matters of Islam between federal law and
state law.

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  5.Legal Critique:Should I be given the
opportunity to rewrite or restructure the
impugned section, I will declare this legislation to
be applicable to religions other than Islam only.
A clear distinction of who has the right to
legislate on matters must be drawn. At the
moment, with the religion on Islam under the
wings of the states, it is only fair that this
AN EXAMPLE section be applicable to persons of other religions
besides Islam, for its application in that context
will be one of ensuring public order, as according
to item 3(a) of the Federal List, Ninth Schedule,
and is as such valid at law. There was no need,
in my humble opinion, to completely bludgeon a
legislation when its intended purpose still held
true. [Source: (1)Caysseny Tean Boonsir,2017
University Malaya (2)austlii.edu.au]

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