If such an offence falls within any of the matters in the Federal List, including criminal law, then the states cannot legislate the enactment.
Chief Justice Tengku Maimun Tuan Mat said this in allowing a declaration by a 35-year-old man that the Selangor state legislature is incompetent to pass a shariah law that makes it an offence to engage in unnatural sex.
The man, whose identity is being withheld on the request of his lawyers, sought to challenge the competency of the Selangor state legislature to enact Section 28 of the Syariah Criminal Offences (Selangor) Enactment.
Tengku Maimun said it was not in dispute in this case that liwat (sodomy), which is one of the offences contemplated by Section 28 and with which the petitioner (man) is charged, is against the precepts of Islam.
The federal versions of Section 28 are buggery under Section 377 and carnal intercourse against the order of nature under Section 377A of the Penal Code.
She said it must be accepted that the relevant Penal Code provisions were competently enacted by Parliament within the meanings of items 3 and 4 of the Federal List.
While Muslims in this country are undoubtedly subject to civil laws on the one side and shariah laws on the other, the extent of the application of shariah laws to Muslims is limited by item 1 of the State List.
“The preclusion clause in item 1 further restricts the power of the state legislatures to enact such laws by subjecting it to the Federal List,” she said.
Tengku Maimun said that in the US, the primary power of legislation was with individual states with residual powers in the federation.
However, she said, the terms in the Federal Constitution and the history of its founding made it abundantly clear that the primary legislative powers of the federation were with Parliament and except for specific matters over which the states shall have legislative powers.
“As such, it is our view that the said Section 28 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,” she said.
She said state legislatures have the power to enact offences against the precepts of Islam which went beyond five pillars of the religion.
The range of offences that may be enacted were wide but was subject to a constitutional limit.
That limit refers to any matter in the Federal List including criminal law. Even where there is no existing federal law on the subject, the state legislatures cannot enact proper offence on matters that fall within any of the items in the Federal List.
This is because Parliament can always choose to enact law over such matters in the future.
In a virtual proceeding earlier today, the Federal Court ruled that since Section 28 is in contrast with the State List under the Federal Constitution, it is inconsistent and void.
Tengku Maimun had chaired a nine-member bench, which also consisted of Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Zabariah Mohd Yusof and Hasnah Mohammed Hashim.
The applicant had sought a declaration that Section 28 is unconstitutional.
On Aug 21, 2019, the chief sharie prosecutor decided to file a charge under Section 28 against the man in the Selangor shariah high court.
He is said to have attempted to commit sexual intercourse against the order of nature with other male persons at a house in Selangor on Nov 9, 2018.
The man claimed trial but the proceedings were stayed pending the outcome of his constitutional challenge in the Federal Court.