The issue was whether the State can enact laws, which is clearly under the jurisdiction of the Federal government. The Constitution lists what comes under the Federal Government powers, and what comes under the State government powers. Criminal offences generally comes under the Federal Government's jurisdiction.
It is not about SYARIAH LAW versus Federal laws - the Syariah law in contention are laws enacted by the State government.
To have 2 different criminal laws that criminalizes actions/omissions and provide for different sentences causes not just confusion but injustice. Which law should the suspected criminal be charged with - the Federal law or the State law? This is the issue.
If we want to give the power to the State to also be able to enact laws that now comes under the jurisdiction of the Federal government, be it a State Syariah law or some other State law, then the Federal Constitution must be amended to either shift the jurisdiction for some crimes to come under the jurisdiction of the State, or for both the State and Federal government to have jurisdiction for the said crimes.
In the NINTH SCHEDULE of the Federal Constitution, there is the Legislative Lists =I—Federal List, List II—State List and List III—Concurrent List. Matters in the List I include Civil and criminal law and procedure and the administration of justice...
The recent case before the Federal Court was whether the enactment of certain provisions of the Kelantan State Law, in this case the State's Syariah Law, for certain 'crimes' and matters was NOT within the powers of the State or not. Did the State government encroach into what is exclusively within the jurisdiction of the Federal Government? Federal Court said YES - hence the provisions in the State enactment was invalid - unconstitutional..
Federal Court rules 16 provisions in Kelantan criminal enactment unconstitutional in Muslim duo's challenge
PUTRAJAYA, Feb 9 — The Federal Court has today struck down 16 out of 18 provisions under the Kelantan Shariah criminal enactment as unconstitutional, ruling that the Kelantan State Legislature does not have the power to enact laws on said offences because there are federal laws covering the same.
Chief Justice Tun Tengku Maimun Tuan Mat, who is leading a nine-member panel of judges, delivered the majority verdict of 8-1 in the constitutional challenge filed by two Muslim women.
Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli was the only judge who dissented or disagreed with the majority.
Other judges on the nine-member panel are President of the Court of Appeal Tan Sri Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah; Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais.
Nik Elin Zurina Nik Abdul Rashid, a native of Kelantan, along with her daughter Tengku Yasmin Nastasha Abdul Rahman, filed a petition directly with the Federal Court under Article 4(4) of the Federal Constitution, naming the Kelantan government as the sole respondent in this case.
The duo are challenging the constitutionality and validity of 18 provisions under the Kelantan Syariah Criminal Code (l) Enactment 2019, claiming that the Kelantan State Legislature does not have the power to enact laws on these offences because there are federal laws covering the same.
Through the court challenge, the two women are seeking the Federal Court to declare that 18 provisions of Kelantan’s Shariah Criminal Code (I) Enactment 2019 are invalid, arguing that the Kelantan state legislative assembly had overstepped its powers or had no powers to make such laws. - Malay Mail, 9/2/2024
According to PAS secretary-general Takiyuddin Hassan, the apex court's decision is also capable of endangering syariah enactments in other states.
"A black Friday to the syariah judicial system, and Islamic laws, that's all we can say.
"As a lawyer myself, I know that when the syariah criminal provisions in one state are nullified, similar provisions in 14 other states are also in critical danger," he told reporters when met outside the Palace of Justice in Putrajaya this morning.
"Anyone, be it from Negeri Sembilan or Malacca, if they are charged in a Syariah Court for sodomy (for instance), he will be brought here (Federal Court)... and the charge will be dismissed. No one can be charged in any Syariah Court with syariah offences," Takiyuddin (above) claimed.
Earlier today, a nine-person bench chaired by Chief Justice Tengku Maimun Tuan Mat in an 8-1 split majority decision allowed lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman’s petition.
The family was challenging the constitutionality of 18 provisions in Kelantan’s Syariah Criminal Code (I) Enactment 2019.
However, the apex court only allowed 16 out of the 18 to be invalidated.
Among the invalidated provisions are destroying a place of worship (Section 11), sodomy (Section 14), necrophiliac sexual intercourse (Section 16), bestiality (Section 17), and sexual harassment (Section 31).
Other struck down controversial Kelantan syariah criminal offences are possessing false documents and giving false information (Section 34), intoxication (Section 36), reducing scale measurement (Section 39), transactions that go against hukum syarak (Section 40), carrying out transactions involving usury (Section 41), and abuse of halal label (Section 42).
The remainder of subject matters criminalised under religious law by the state legislature are offering or providing vice service (Section 43), preparing to offer or provide vice service (Section 44), preparing to indulge in vice (Section 45), incest (Section 47), and muncikari or person acting as an intermediary between two people for certain offences (Section 48).
The provisions the Federal Court did not allow in the duo’s bid to nullify are giving away a child to a non-Muslim or morally corrupt Muslim (Section 13), and words that break the peace (Section 30).
‘No small matter’
Takiyuddin stressed that the nullification was "no small matter" as it involved upholding Islamic laws and the Malay rulers' institution.
"This is no small matter. It is about upholding the syariah, and the Malay rulers as the head of Islam in states, the Yang di-Pertuan Agong as the head of Islam in the Federal Territories and other states without a sultan.
"So, we are defending the syariah, and the Malay rulers' institution," he said.
PAS information chief Ahmad Fadhli Shaari urged the federal government to amend the Federal Constitution to protect syariah laws.
"We want the government to expedite constitutional amendments. The government already has two-thirds majority support, so does not need backing from the opposition.
"The government can draft a new law which gives more muscle to protect syariah laws. We will commit to support (this initiative)," he said.
Save Syariah Movement co-chairperson Mohd Zai Mustafa said the group will present a memorandum to the Agong and the National Council of Islamic Religious Affairs on the apex court's decision.
In addition, the group will also embark on a nationwide roadshow to explain the decision, and discuss ways to uphold the syariah justice system.
1,000 people ‘voluntarily’ gather
Earlier, about 1,000 people gathered outside the Palace of Justice, in anticipation of the verdict.
The crowd started gathering as early as 8am and was followed by speeches and a prayer session.
Aside from Takiyuddin and Fadhli, other opposition figures spotted at the scene were PAS vice-president Idris Ahmad, former Kelantan menteri besar Ahmad Yakob, and Bachok MP Mohd Syahir Che Sulaiman.
Fadhli claimed that the crowd gathered of their own volition, and there was no inducement nor coercion involved.
"We
just invited, we did not force. God willing, this crowd shows the
strength of the rakyat's support for the Kelantan state government." - Malaysiakini, 9/2/2024
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