What is the constitutional basis for challenging state Shariah laws?

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Constitutional Basis for Challenging State Shariah Laws in Malaysia

Two Malaysian Muslims with ties to Kelantan have been granted permission by the Federal Court to proceed with a constitutional challenge against 20 Shariah offences under a Kelantan state law. This legal action is grounded in Article 4(4) of the Federal Constitution, which permits the questioning of the validity of laws enacted by Parliament or a state legislature. Such a challenge can be initiated if there are grounds to believe that the legislative body exceeded its authority in creating the law. The Federal Court holds exclusive jurisdiction over these constitutional matters, as stipulated by Article 128(1)(a) of the Federal Constitution.
Federal Court Permission Required for Challenges

For any constitutional challenge to commence under Article 4(4), a Federal Court judge must first grant leave, or permission, for the case to proceed. In this specific instance, Federal Court judge Datuk Vernon Ong Lam Kiat heard arguments from both the plaintiffs and the Kelantan state government on September 30 and subsequently granted the necessary leave for the challenge to begin. This decision signifies that the initial procedural hurdle has been cleared, allowing a panel of Federal Court judges to adjudicate on the core issue of the Kelantan state government's legislative power.
Specific Provisions Under Scrutiny

The constitutional challenge specifically targets 20 provisions within Kelantan's Syariah Criminal Code (I) Enactment 2019. The argument put forth is that the Kelantan state legislative assembly lacked the constitutional authority to enact these provisions, as the subject matter falls under the purview of federal law-making powers concerning 'criminal law'. This is based on Item 4 of the Federal List in the Ninth Schedule of the Federal Constitution, which assigns the power to legislate on criminal law to Parliament.
Federal vs. State Legislative Powers

The core of the legal argument is that while state legislatures have powers under Item 1 of the State List to legislate on offences against Islamic precepts, these powers are limited and do not extend to matters already covered by federal criminal law. The plaintiffs contend that all 20 challenged provisions in the Kelantan law are already encompassed within various federal statutes, such as the Penal Code and anti-trafficking laws, thus exceeding the state's legislative competence. This distinction between federal and state legislative powers under the Federal Constitution forms the crux of the constitutional challenge.

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What is the constitutional basis for challenging state Shariah laws?

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