State legislatures lack authority to enact laws that fall under federal jurisdiction, particularly in criminal law, rendering such laws unconstitutional.

Tengku Maimun Tuan Mat CJ (majority):

Introduction

[1] My learned brother Abdul Rahman Sebli, CJSS is dismissing the petition on the sole ground that the petitioners had no locus standi to file the petition. The other members of the Coram have seen my judgment in draft and have expressed their agreement with it. This is the majority judgment of the Court.

[2] In this judgment, unless otherwise expressly or impliedly stated, any references to 'Articles', 'Clauses', 'Schedules', 'Lists' shall be taken to mean any references to those of the Federal Constitution (' FC '). Likewise, any references to 'sections' means any reference to the sections of the Kelantan Syariah Criminal Code (I) Enactment 2019 [Enactment 14] which incidentally by virtue of s 1(3) of the same, applies to Muslims only and that too, only in the State of Kelantan.

The Federal Court's Exclusive Original Jurisdiction

[3] This is a petition filed in the exclusive original jurisdiction of the Federal Court. The original jurisdiction of the Federal Court is very narrow and limited and the type of cases that can be filed directly in the Federal Court's original jurisdiction are therefore very specific (see arts 4(3), 4(4) and 128(1)).

[4] The first type of cases involves disputes on any question between States or between the Federation and any State. Purely by way of example, if the Federation were to sue or be sued by the State of Pahang, or if the State of Perak were to sue or be sued by the State of Perlis, these suits can be filed directly in the Federal Court - without leave.

[5] The second category of cases that can be filed directly in the Federal Court is any dispute where the petition seeks a declaration that a law is invalid on the ground that Parliament or the State Legislature of any State had no power to make the law in question. These kinds of petitions unlike the first category of cases, cannot be filed straight away in the Federal Court if the party filing them is neither the Federation nor any State in Malaysia. These kinds of petitions can only be filed after a single Judge of the Federal Court has granted leave to file the petition - again assuming that the party filing such a case is neither the Federation nor a State.

[6] "Leave of Court" simply means something that requires prior permission from the Court. In other words, a potential petitioner must first seek the permission of a single Judge of the Federal Court before he or she can begin to file the petition in which he or she will challenge the law on the ground that either Parliament or the State Legislature had no power to make. Fora deeper understanding on leave, see the judgment of this Court in Wong Shee Kai v. Government of Malaysia , 2022 MarsdenLR 522 ('Wong Shee Kai').

[7] The judgment in Wong Shee Kai also explains why the second category of cases are called 'incompetency challenges' as opposed to the more generic challenges called 'inconsistency challenges'. In other words, in practice, we call a case that is filed in the Federal Court's original jurisdiction to seek a declaration that a law is invalid on the grounds that Parliament or the State Legislature had no power to make it as 'incompetency challenges'.

[8] The two types of categories stated above that invoke the Federal Court's original jurisdiction are exclusive to the Federal Court. This means that such kinds of cases can only be filed in the Federal Court and no other Court.

[9] In this original jurisdiction petition the petitioners seek a declaration that ss 5, 11, 13, 14, 16, 17, 30, 31, 34, 36, 37(1)(a), 39, 40, 41, 42, 43, 44, 45, 47 and/or 48 of the Kelantan Syariah Criminal Code (I) Enactment 2019 [Enactment 14] ('Enactment 2019') are invalid, and hence null and void, on the ground that the Legislature of the State of Kelantan ('LSK') and thereby the respondent had no power to make those provisions. We shall collectively refer to the sections under challenge as the 'Impugned Sections'.

[10] At this stage we also fi