AMID a series of statements made by politicians in regards to the recent landmark ruling by the Federal Court, the Bar Council said the verdict made a lot of things clear, in terms of Federal and State’s jurisdiction.
“The decision is clear in its views on the demarcation of jurisdictions between Federal and State legislatures, in regards to creating laws concerning criminal offences.
“We are a nation governed by Constitutional supremacy. Any laws enacted that goes against the Federal Constitution can be declared null and void,” its president Salim Bashir told FocusM.
Three days ago, the Federal Court has ruled that the Selangor state legislature is not allowed to pass Syariah Enactments that makes it an offence to engage in “unnatural sex”.
In making the verdict, Chief Justice Tun Tengku Maimun Tuan Mat, who led a nine-member bench, said the power to enact criminal laws lies with the Parliament, not state legislatures.
With that, the senior judge ruled that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which allows for punishment for “unnatural sex”, is unconstitutional.
Following the verdict, Umno deputy president Datuk Seri Mohamad Hasan opined that the ruling would open the “floodgates of confusion” pertaining to the powers of Syariah courts and civil courts in Malaysia.
PAS secretary general Datuk Seri Takiyuddin Hassan urged the public not to challenge any other state enactments in court saying “it would not benefit the country”.
However, lawyer-activist Siti Kasim pointed out there was no confusion as the Federal Court defined the boundaries of Syariah courts, adding only those with vested interest were “confused” over the verdict.
Touching on the matter, Salim said the apex court acknowledged the separation of powers between Federal and State Governments, via Article 74 and 9th Schedule of Federal Constitution, which places Islamic matters under State purview.
He also said that the verdict clarifies the jurisprudence of this demarcation in clear terms, when it ruled that matters of criminal laws, which are included under the Federal list, cannot be legislated by State Governments.
“It is safe to say that state legislatures are not allowed to create laws on, for instance, national security or public order as it falls under Federal List, whether or not it is a current offence under the Penal code or other federal laws,” he added.
On the case of Mamat Daud (1988), Salim said the then-Supreme Court, reinforced the same proposition, although the issue was diametrically quite an opposite, when constitutionality of section 298A of the Penal Code was challenged.
Back then, he stated, the majority held that since the impugned provision in substance touches on religion in general and Islam in particular, the Parliament cannot indirectly legislate on matters in which it has no jurisdiction, rendering clearly that Islamic affairs fall under state powers.
“And the recent decision seems to have reiterated the same principles, enunciated earlier in Mamat Daud’s case, on the separation of powers between State and Federal legislatures for criminal offences.
“In essence, the Federal Court opined that State can legislate on matters against precepts of Islam. However, it is subjected to Constitutional limits and matters that are not provided by Federal laws,” Salim remarked. – Feb 28, 2021.