“Similarly worded enactments in other states will suffer the same fate as that in Selangor,” lawyer Muhammad Rafique Rashid Ali said.
Rafique said the verdict could be enforced in other states by way of example or analogy though the dispute in this particular case was between a Muslim individual, the Selangor government and the Selangor Islamic Religious Council (Mais).
He said charges framed under such enactments, whether in Selangor or in other states, now became illegal as they went against the Federal Constitution.
He said the apex court did not label the offence as unIslamic, instead choosing to focus on the constitutionality of the enactment.
He was commenting on a verdict by a nine-member bench that states can enact laws on offences against the precepts of Islam for Muslims, but not when these are already on the Federal List.
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 was incompetent to pass a shariah law that made 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) was charged, was 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.
The terms in the constitution and the history of its founding, she said, made it abundantly clear that the primary legislative powers of the federation were with Parliament.
Tengku Maimun was also of the view that Section 28 was enacted in contravention of item 1 of the State List which stipulates that state legislatures have no power to make laws in regard to matters included in the Federal List.
Meanwhile, retired Federal Court judge Gopal Sri Ram said the ruling revealed the constitution was supreme and not the state legislature.
“Powers of the state legislatures are controlled by the constitution which is the supreme law of the land,” he said.
He said Parliament could not “pretend” to make laws under the Federal List and encroach into a subject in the State List and vice versa.
“To make sure the balance is kept between federal and state powers, it is the court which is the guardian of the constitution,” he said.
Sri Ram said this was aptly demonstrated in yesterday’s verdict as the federal government and states must know their constitutional limits and the judiciary was there to ensure there was no crossover.