Nik Elin Zurina (right) and Tengku Yasmin seen on their way out of the Palace of Justice. — Bernama photo
TODAY, I’m treading on a dangerous ground – an unbeatable combination of religion, politics and law.
Don’t worry, I will be careful to avoid the muddy patches and skirts around the corner where there’s the danger of a serious slip.
Wish me luck.
On Friday, Feb 9, 2024, eight out of nine judges of the Federal Court of Malaysia had declared that ‘16 out of 18 provisions of the Kelantan’s Syariah Criminal Code (1) Enactment 2019 were invalid, as the Kelantan State Legislative Assembly had overstepped its powers or had no powers to make such laws’ (Malay Mail/The Borneo Post, Feb 14, 2024).
Two lawyers, mother and daughter, Nik Elin Zurina Nik Abdul Rashid and Tengku Yasmin Natasha Tengku Abdul Rahman, had challenged the competency of the Kelantan’s legislature in having enacted a Shariah criminal law covering the topics considered as within the competency of the federal government only to legislate.
As it happens, the two learned ladies are Kelantanese.
In effect, the petitioners were seeking a second legal opinion. And they had come to the right venue, the Bench.
Although in that case, one judge dissented (on the issue locus standi of the petitioners), the majority agreed with the ladies that there was indeed an overlapping of legislative jurisdictions between those of the state legislature and the federal parliament government.
Here, note well, we are talking about the authority of the Kelantan State Assembly to legislate precepts of Islam into its criminal law.
Lawyers under siege
I do not know whether or not the petitioners had earlier sensed that there might be adverse reactions should they succeed in their challenge.
As it turned out, the petitioners, as officers of the court, had been unjustly ostracised for doing a good job in seeking to sustain the justice system in this country.
How little do we appreciate the importance of the role of ordinary citizens in terms of keeping tabs on the passing of laws!
Seldom do ordinary citizens take the trouble to go to court to seek opinion of the court after a legislation is approved by the authorities, not until a case has cropped up involving breaches of human rights and the fundamental liberties which are written into the constitution.
We are not a curious nation, are we?
We should instead salute the brave ladies from Kelantan for their courage of conviction to scrutinise any enactment passed by any legislature in their state in terms of overlapping legislative jurisdictions.
I have read the judgment delivered by Chief Justice Tengku Maimun Tuan Mat. I do not find anything in that written judgment that suggests any intention on the part of the judges to undermine the powers and authority of the Kelantan Shariah Court, nor of the state’s legislature itself.
The legislators can include the precepts of Islam as crimes in their enactments, as long as they are not in conflict with the relevant provisions of the federal constitution.
It seems to me that those who are not happy with the result of the petition see that decision only through political or religious lenses. It’s like wearing purple spectacles, and then complaining because the grass doesn’t look green.
The federal government could clearly list all the possible offences concerning which each state has the power to legislate. This is to avoid a vacuum.
True, each state is supposed to confine legislation in respect of the State List or the Concurrent List.
Obviously, there was a void that the Kelantan legislators wanted filled. As it turned out, however, this was a good intention misplaced.
Don’t blame them entirely. The federal government should have listed out and defined all the precepts of Islam as offences that the Kelantan government wanted codified for the Shariah Courts to handle.
Amendment to Federal Constitution
The members of Parliament from political parties in the Perikatan Nasional (PN) have mulled over a plan to move a Private Member’s Bill ‘aiming to enhance and empower Shariah institutions and laws’.
I say they have the freedom to think about doing the best in terms of legislating the precepts of Islam as part of the criminal code of their state, repeat, as long as there will be no overlapping of legislative jurisdiction.
The best course for them is to amend the Shariah Criminal Jurisdiction Act 1965, rather than the Federal Constitution.
I am not sure about the exact provisions of the Federal Constitution that they want amended.
I think that an amendment to the Shariah Courts Jurisdiction Act would be easier to pass, compared to the chances of a Private Member’s Bill tabled by the Opposition getting through Parliament.
A Private Member’s Bill may not see the light of day when it comes to the stage where a vote is necessary in a legislature dominated by the MPs from the political parties forming the government of the day.
In normal parliamentary process, any substantive motion brought by the Opposition is placed low on the agenda of each sitting. Government Bills get the priority.
Unless the current government loses its two-thirds majority of votes in parliament, any Private Member’s Bill from the Opposition would likely be outvoted anyway.
It would be odd indeed if the government would vote for a proposal by the Opposition. But then, one can never tell what will happen in a ‘Malaysia Boleh’.
Failure for the Opposition to get the parliamentary support of the government of the day to the mandatory two-thirds of votes in order to pass an amendment to the constitution would be an exercise in futility.
And the aim to enhance the Shariah laws and institutions may not be achieved that soon.
Just a food for thought.