FEBRUARY 10 — I refer to your report “List of Kelantan Shariah criminal enactment’s 16 provisions ruled unconstitutional by Federal Court”.
I have taken liberty to take four of the provisions (Sections 11, 14, 17 and 31) and list them against provisions in the relevant federal law.
The Federal Court on Friday (Feb 9) struck down the 16 provisions as unconstitutional, ruling that the Kelantan State Legislature does not have the power to enact laws on the said offences because there are federal laws covering the same.
The power of Parliament and State Legislature in Malaysia is limited by the Constitution, and they cannot make any law as they please. (See the judgment of Lord President Suffian in Ah Thian v Government of Malaysia )
Article 74(2) of the Federal Constitution states as follows:
“Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.”
Item 1 of the State List empowers the Legislature of the State to make laws on “Islamic law and personal and family law of persons professing the religion of Islam, including the ... creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”.
Item 4(h) of the Federal List empowers Parliament to make law on the “creation of offences in respect of any of the matters included in the Federal List or dealt with by federal law”.
The gist of the Federal Court decision is this: The 16 provisions are in pith and substance on matters in respect of which Parliament has power to make laws. (See the Table above for comparison of four of the 16 provisions with the relevant federal law)
Article 128(1)(a) of the Federal Constitution empowers the Federal Court to determine “any question whether a law made by Parliament or by the Legislature of a State is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws”.
In exercise of that exclusive power, the Federal Court on Friday ruled that the provisions are invalid.
Minister in the Prime Minister’s Department Datuk Mohd Na’im Mokhtar has rightly assured all Muslims that the Shariah Court’s authority is still intact following the Federal Court ruling.
Is the ruling a “Black Friday”?
*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.