PUTRAJAYA – An Islamic healer today failed to obtain leave from the Federal Court to commence a constitutional challenge over the validity of the Traditional and Complementary Medicine Act 2016 pertaining to Islamic medicine and Malay traditional medicine.
Federal Court judge Datuk Seri Mohd Zawawi Salleh dismissed Ramli Ghani’s application for leave as Ramli did not fulfil the requirement under Article 4 (4) of the federal constitution.
He said Parliament is competent to enact the act, adding that Section 25 of the act is only a regulation for registration of practitioners of traditional medicine, which also includes Islamic medicine and Malay traditional medicine.
“Looking at the overall act, I find that it does not involve the determination of hukum syarak and Malay custom,” Zawawi said.
Ramli sought leave to commence a constitutional challenge as he claimed that Parliament did not have the power to make law in respect of Islamic healing techniques that are within the purview of the state Islamic Religious Council.
Ramli named the Health Ministry and the government as respondents.
He claimed that the act is unconstitutional as matters relating to Islamic medicine and Malay traditional medicine are under the authority, prerogative, and privilege of the sultan as guaranteed under Article 38(4) of the federal constitution.
He also claimed that Sections 25 and 26 of the Act are null and void.
Section 25 states that a person who is not a registered practitioner shall not directly or indirectly practise traditional and complementary medicine services and if a person is convicted for the offence, he shall be liable to a fine not exceeding RM30,000 or imprisonment not exceeding two years or both.
Section 26 states that a registered practitioner shall not practise in a recognised practice area unless he holds a valid and subsisting practising certificate.
In today’s proceedings, Ramli’s lawyer Datuk Shaharudin Ali submitted that Islamic medicine is related to Islam and the aspects of treatment given by Islamic healers concerned with mystical or spiritual illnesses which do not fall under the category of modern medicine.
He said the act is invalid as Parliament does not have the power to decide and set guidelines for Islamic medicine as it involves Islamic laws.
“Islamic medicine cannot be separated from the usage of verses of the Quran and Sunnah-Sunnah Nabi,” he said.
Senior federal counsel Shamsul Bolhassan, representing the Health Ministry and the government, submitted that the act is to regulate health and medicine services, including medical professions that fall under Item 14, List 1 of the Ninth Schedule of the federal constitution.
“Therefore Parliament has the power to enact the act,” he said.
Shamsul said Section 5 of the act also provides for the functions and powers of the Traditional and Complementary Medicine Council, which is to regulate traditional medicine services in Malaysia but not in respect of matters pertaining to the Islamic religion and Malay customs.
“The scope of regulating and managing the practitioners by the council under the act includes disciplinary matters,” he said, adding that the provision does not touch on the determination of matters of Islamic law and Malay custom. – Bernama, March 17, 2022
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