Federal Court ruling opens floodgates to challenge constitutionality of state laws, says syariah lawyers' group


KUALA LUMPUR: The Federal Court ruling on the unconstitutionality of the Selangor state law provision which punishes unnatural sex would open the floodgates for other parties to challenge other provisions under the states' syariah criminal enactment, says the Malaysian Syariah Lawyers Association (PGSM).

Its president Musa Awang said that the ruling from the apex court would effectively dampen states' powers to legislate its own syariah criminal offences despite the offences being within the precepts of Islam, as the ruling now considers syariah criminal offences, if there exist similar provisions in Federal laws, to be repetitive and void.

"The court's decision has given a significant implication to the state legislature in the country, particularly syariah criminal offences," he said in a statement.

Musa also said the ruling would "close the door" on the proposal for hudud and qisas to be enacted in the country as hudud offences such as stealing (sariqah), robbery (hirabah) and qisas offences such as murder (al-qatl) are also contained under the Penal Code.

He urged the state government and other authorities to take a drastic and holistic decision to revisit and review the existing syariah criminal laws to ensure that syariah laws would not be challenged by certain parties in the future.

Meanwhile, former Court of Appeal judge Datuk Seri Mohd Hishamudin Md Yunus applauded the ruling.

"The judgment is in line with the basic constitutional principle that state legislation cannot contravene the Federal," he said in a statement to The Star.

The Suhakam commissioner said under the Federal Constitution, the creation of a criminal offence is within the legislative competence of Parliament and not that of state legislature.

"Accordingly, for the prohibition against 'unnatural sex', it is already provided for by Parliament under Federal law, namely, Section 377A of the Penal Code.

"That being the case, a state legislature, such as the Legislative Assembly of the State of Selangor, cannot legally enact a similar offence. And to do so would be a contravention of the Federal Constitution," he added.

On Thursday (Feb 25), a nine-man panel of the Federal Court chaired by the Chief Justice ruled a Selangor state law that criminalises "unnatural sex" as void as the state legislature had no power to make such laws.

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