AUGUST 18 — In Kedah State’s decision not to renew business licences for pool betting operators was ‘ultra vires’ the Federal Constitution I wrote that the majority decision of the Court of Appeal ruled that the Kedah State’s decision was “ultra vires” the Federal Constitution.  

The majority decision found support in no less than four Federal Court decisions.

The first was the case of  Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of the State of Penang & Ors [2018]. The case concerns the constitutionality of two laws.

The first was a federal law – the State Legislatures Competency Act 1962 (the Act). The second was a state law – the Penang (Incorporation) Enactment 2009 (the Enactment).

Exercising the delegated legislative power pursuant to the Act and in accordance with Section 3 and its First Schedule, the Penang State Legislature had passed the Enactment.

Section 3 of the Enactment provides for the incorporation of the Chief Minister of Penang. Sections 4 and 5 of the Enactment state the various powers of the Chief Minister of Penang incorporated, which could fairly and reasonably be comprehended as matters ancillary or incidental to its incorporation.

The Act relates to a matter enumerated in the Federal List and therefore is within the legislative competence of Parliament under Article 74 of the Federal Constitution (FC).

The Enactment relates to a matter enumerated in the Federal List, on which the power to make laws has been validly delegated by Parliament to the State Legislature under Article 76A of the FC. In doing so, Parliament or State Legislature had not covertly or indirectly encroached upon forbidden territory.

Accordingly, the Act makes provision with respect to a matter which Parliament has power to make laws while the Enactment makes provision with respect to a matter which the Penang State Legislature (PSL) has powers to make laws.

The Act and the Enactment are therefore not invalid.

In other words, the laws are within the constitutional demarcation of federal and state powers.

The second case is Letitia Bosman v Public Prosecutor and other appeals (No 1)  [2020] 5 where the Federal Court emphasised that the Legislative Lists – List I (Federal List) and List II (State List – demarcate constitutional fields of competence and are not to be read as invitations to encroachment.

The third case is Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021]. The case concerns the interpretation or effect of the words ‘except in regard to matters included in the Federal List’ contained in item 1, List II – that is, the power of the State Legislatures to make laws under the said item.

The petitioner was granted leave pursuant to Article 4(3) and (4) of the FC to challenge the competency of the Selangor State Legislature (SSL) to enact Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 (1995 Enactment).

The petitioner sought, among others, a declaration that Section 28 of the 1995 Enactment was invalid on the ground that it made provision with respect to a matter to which the SSL had no power to make laws and was therefore null and void.

A strong bench of nine apex court judges, chaired by Chief Justice Tengku Maimun, unanimously granted the declaration.

Delivering the judgment of the apex court, Chief Justice Tengku Maimun said:

“In terms of legislative power, Article 74(3) of the FC provides that the power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

“The conditions and restrictions referred to in Article 74(3) must surely include the preclusion clause in item 1 of the State List…. [T]he terms of our FC and the history of its founding make it abundantly clear that the primary legislative powers of the Federation shall lie ultimately with Parliament save and except for specific matters over which the states shall have legislative powers.

“The general power of Parliament to enact criminal law is provided for in items 3 and 4 of the Federal List.”

After setting out items 3 and 4, the Chief Justice continued:

“It is quite clear from the wordings of Articles 74(3), 75 and 77 that the primary power of legislation in criminal law resides in Parliament. This is further borne out by the State List in terms of the powers of the State Legislatures to enact criminal laws, namely that the powers are subjected to the preclusion clause in item 1 of the State List and item 9 of the State List….

“The entire tenor of all the foregoing Articles read as whole and harmoniously suggests that the states do not have an overriding power of legislation on the subject of criminal law. Their power is strictly designated to matters which Parliament does not otherwise have power to make laws on.”

Accordingly, the Federal Court ruled that Section 20 of the 1995 Enactment was unconstitutional and therefore void as the provision was “enacted in contravention of item 1 of the State List which stipulates that the State Legislatures have no power to make law ‘in regard to matters included in the Federal List’.”

The above decision was reinforced in the fourth and latest case of Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024].

Another strong bench of the apex court, by an overwhelming majority (8:1), ruled that provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019 (2019 Enactment) were invalid on the ground that they provided for matters with respect to which the Kelantan State Legislature (KSL) had no power to make laws and that the provisions were accordingly void. 

The gist is this: the Federal Constitution has clearly demarcated the legislative competence of the federal Parliament and the State Legislatures and listed out the matters which each may make law.

In violation of the constitutional demarcation, law passed by a legislature – Federal or State – in invalid and void.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.