Parliament, state legislature cannot make laws beyond list provided in Federal Constitution - Court

PUTRAJAYA - The Federal Court today ruled that the Parliament and the state legislature cannot make laws beyond the list in the Ninth Schedule of the Federal Constitution.

Chief Justice Tun Tengku Maimun Tuan Mat, in her summary judgment on the case of two women who challenged the constitutionality and legality of 18 provisions in the Kelantan Syariah Criminal Code (1) Enactment 2019, said the federal and state legislative powers are determined by the Federal Constitution.

Regarding the 18 provisions in the Kelantan Syariah Criminal Code (1) Enactment 2019 which were challenged by the two Muslim women, Justice Tengku Maimun said the legal principle is well established that the Parliament or the state legislature can make laws within the limits of their respective legal powers.

In the case, she said, the provisions made by the state legislature are a matter included in the federal list.

"The test is not to compare the provisions that are being challenged with the existing provisions in the Federal law to determine whether there are differences in the two," she said.

The Federal Court in an 8-1 majority decision today, in allowing the application by the two women, ruled that 16 provisions in the Kelantan Syariah Criminal Code (1) Enactment 2019 were null and void.

The two women, Nik Elin Zurina Nik Abdul Rashid, who is from Kelantan, and her daughter, Tengku Yasmin Nastasha Abdul Rahman, filed the petition to the Federal Court in accordance with Article 4(4) of the Federal Constitution and named the Kelantan State Government as the sole respondent.

They claimed that the Kelantan State Legislative Assembly (DUN) did not have the authority to legislate on the 18 offences because there is a Federal law that covers such offences.

Among the 16 provisions of offences in the Kelantan Syariah Penal Code (1) Enactment 2019 which the Federal Court declared as void are Section 11 (Destroying or defiling place of worship), Section 14 (Sodomy), Section 16 (Sexual intercourse with corpse), Section 17 (Sexual intercourse with non-human) and Section 31(Sexual harassment).

Others are Section 34 (Possessing false document, giving false evidence, information or statement), Section 36 (Anything intoxicating), Section 39 (Reducing scale, measurement and weight), Section 40 (Executing transactions contrary to 'hukum syarak' (Syariah Law), Section 41 (Executing transactions via usury), Section 42 (Abuse of halal label and connotation), Section 43 (Offering or providing vice services), Section 44 (Preparatory act of offering or providing vice services), Section 45 (Preparatory act of vice), Section 47 (Act of incest) and Section 48 (Muncikari - men dressed in women’s clothing or vice versa).

The other two challenged provisions namely Section 13 (Selling or giving away child to non-Muslim or morally reprehensible Muslim) and Section 30 (Words capable of breaking peace), are maintained.

Justice Tengku Maimun said the court decided that Section 13 and Section 30 are valid because they concern matters that the Kelantan state legislature has the power to make.

The other provisions that are challenged are invalid because the essence of the provision concerns matters under the federal list which only the Parliament has the power to make, she said.

She said the essence of Section 13 is about safeguarding and controlling the development of doctrines and beliefs among people who adhere to the Islamic religion, which is included under Item 1 of the State List.

"It is also related to Article 11(4) of the Federal Constitution which states that states can make laws to control or restrict the development of religious doctrine or belief among people who follow Islam.

"Likewise, the essence of Section 30 is to control or restrict the development of religious doctrines or beliefs among people who adhere to the Islamic religion, not to simply break the peace,” she said and citing Section 83 of the Courts of Judicature Act 1964 made no order to cost.

Meanwhile, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, who dissented, ruled that the two petitioners did not have locus standi to challenge the validity of the enactment.

He pointed out that the fear factor alone is not sufficient to present the challenge in court, hence they must show how the petitioner's fundamental rights are negatively affected by the Kelantan enactment.

"They did not show how the Kelantan Syariah criminal provisions had violated their constitutional rights. It was important for the judiciary to ensure that only petitioners with locus standi were allowed to continue their challenges.

"Otherwise, it will only cause certain parties including 'busy feet' to abuse the legal process," he said.

Nik Elin Zurina, when met by reporters, said she was grateful for the decision and expressed her gratitude to her legal team, represented by Datuk Malik Imtiaz Sarwar.

"Today's decision has nothing to do with Islamic doctrine...it is only about the competency of the State Legislature," she said. - BERNAMA