Tok Mat on landmark ruling: Civil, Syariah court harmony now “under confusion”

An UMNO leader has opined that the recent landmark ruling by the Federal Court would open the “floodgates of confusion” pertaining to the powers of Syariah courts and civil courts in Malaysia.

“If we study the matter thoroughly and critically, there is no doubt that the ruling will bring confusion on defining the jurisdiction of Syariah and civil laws in dealing with a crime.

“This includes the harmony between our civil and Syariah courts, as well state Enactments and the Federal Constitution,” said Umno deputy president Datuk Seri Mohamad Hasan, in a Facebook post.

Two 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.

“The enacted section is also in contrast with the State List under the Federal Constitution. As such, Section 28 is inconsistent and void,” Tengku Maimun was reported saying.

Federal vs state powers

Touching on the landmark ruling, Hasan said the public should take note of three issues, which would affect the standing of Syariah Enactments of the country.

Firstly, he said, it touches on the limits of state legislatures in enacting Syariah criminal laws.

“Although the Federal Constitution and our learned judges have made simple definitions, the ruling opens room for various interpretations as Syariah laws don’t only cover issues of faith, sanctity of Islam and morality. It is related to one another and can overlap with different categories,” he added.

Secondly, Hasan queried on whether State Governments would need to revise all of its Syariah Enactments, following the ruling, so as to ensure they do not overlap with Federal jurisdiction.

“And thirdly, what about Syariah offenses that comes under Federal purview but yet to have a law on it?

“Since our state legislatures can’t make laws on it, does that mean those Syariah offenses can continue to be committed?” asked the Rantau state assemblyman. – Feb 27, 2021

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