The Sabah Law Society (SLS) has expressed concerns with Law Minister Takiyuddin Hassan's call that no further challenges to state syariah laws be mounted.
The society's president, Roger Chin said that it was troubled by Takiyuddin's call, following the Federal court ruling that a Selangor state syariah enactment on unnatural sex was invalid.
"The SLS takes the firm stand that all parties are entitled to challenge the constitutionality of laws enacted in Malaysia, whether they be state or federal laws.
"This is a hallmark of a democracy, and the people should not be deterred to seek recourse with the courts," Chin said in a media statement today.
On Feb 28, Takiyuddin urged that no further challenges to state laws be mounted following the Federal court decision.
The PAS secretary-general said additional challenges would have negative consequences and does not acknowledge the dynamism that syariah legal principles bring to the Malaysian legal system.
On Feb 25, the Federal Court struck down a Selangor state syariah law that criminalises unnatural sex, ruling that only Parliament has jurisdiction to make laws pertaining to the matter.
For the record, Parliament-enacted laws that criminalise unnatural sex are contained in the Penal Code.
Chin today said that the apex court verdict is not an attack on Syariah law because it merely dealt with areas upon which the state legislature can make laws on and matters which only Parliament can enact laws on.
He said that the main aspect of the Federal Court decision is not controversial as it merely upheld the Federal Constitution, which laid out matters which fall under the law-making jurisdiction of the Dewan Rakyat and the state legislatures, respectively.
Matters on which state legislatures have the power to make laws are contained in the Federal Constitution's State List, while those that only Parliament has jurisdiction to enact laws on are contained in the Constitution's Federal List.
"Clearly, therefore, any laws enacted by the states in relation to matters contained in the Federal List are invalid. The states simply have no power to legislate in relation to such matters. This is a fairly rudimentary principle, and the law minister would or should be entirely aware of the same.
"The SLS applauds the willingness of the Federal Court to uphold the basic tenets of the
Federal Constitution, notwithstanding the potential for misunderstanding by members of the public or politicisation by politicians, who may not appreciate the context of the decision.
"In the premises, it would be irresponsible for anyone to characterise the decision of the Federal Court as an attack on Syariah law and go further to discourage similar challenges.
"The provisions of the Federal Constitution must be upheld at all times. Although there may be concerns as to perception, which should be managed with tact and diplomacy, ultimately the rule of law and the provisions of the Federal Constitution must always be preserved and upheld," Chin said.
He said that SLS encourages public interest litigation and challenges to the constitutionality of any laws passed, whether state or federal, throughout the country.
Chin said that it is only through a challenge that laws can truly be described as 'tried and tested'.
"If laws are validly passed, no party should fear a challenge to the constitutionality of the same, and nobody should be seen to discourage such challenges," he said. - Mkini
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