The divorce of muslims is a matter within
The Federal Constitution is the federal law of Malaya. The Federal Constitution clearly divides the law making authority of the Federation into its judicial authority, legislative authority and executive authority. Both in federal and state levels the seperation of power occur. The Federal government has executive power over all matters on which Parliament can make laws. The States have executive power over all the matters on which the Legislative Assemblies can make laws.
In the state of Malaysia, a federal law, the Muslim courts( Criminal Jurisdiction Act 1965) conferred jurisdiction upon courts constituted under any state law, for the purposes of dealing with offences which is under Muslim law. Moreover, under item 1 of the State List power to make law for the creation and punishment of offences by person professing the religion of Islam against percepts of that religion, except in regard to matters included in the Federal List are given to state legislatures.
Abdul Hamid Mohammad FCJ pointed out in the case of Latifah v Rosmawati that, whereas the Federal Parliament under the Article 74 of the Federal Constitution has extensive powers over matters listed in Federal List (which includes external affairs, defence, internal security and marriage and divorce), it does not have the power to legislate in the following areas, in relation to civil and criminal law and procedure and the administration of justice, in respect of the constitution and organization of the syariah courts, in respect of Islamic personal law relating to marriages, divorce, guardianship, maintenance, adoption, legitimacy. Due to that marriage and divorce law of non muslim is a matter within jurisdiction of parliament to make, while marriage and divorce of muslims is a matter within the jurisdiction of the legislature of a state to make. There should not be any situation where both courts have jurisdiction over the same matter or issue if the laws are made by the parliament and the state legislature in strict compliance with the Federal List and Sate List.
Even though Abdul Hamid Mohamad FCJ did not list the state law which have encroached on the Federal legislative domain, one area in which such violation is abundantly clear is in the area of criminal law. Criminal law is totally a federal matter under the Federal Constitution. However, pursuant to schedule 9, List 2, Item 1state assemblies are empowered to create and punish offences against the precepts of Islam, except as regards matters included in the Federal List. The Federal Court has made clear there are two constitutional qualifications to the exercise to this power : where an offence is already in existence in the Federal Penal Code, for example, a state assembly cannot create a similar offence, for to do so would offend against the exception in Item 1 that no further state legislation is allowable where maters are already included in the Federal List.
In addition, as stated by Professor Shad Saleem Faruqi, ‘Murder, theft, robbery, rape, incest and homosexuality are all offences in Islamic law but are clearly in federal hands due to Schedule 9, List I, Item 4(h) and the Federal Penal Code. Murder is covered by sections 300, 302 and 307 of the Penal Code. Theft is dealt with by sections 378 – 382A; robbery by sections 390 to 402; and rape in section 375 – 376. Incest and homosexuality can be covered by sections 377A