KUALA LUMPUR – The Kelantan government’s bid to re-enact provisions struck out from the state’s shariah criminal enactment is not only an exercise in futility but also a constitutional crisis in the making, said former Court of Appeal judge Datuk Hamid Sultan Abu Backer.
He told Scoop that while the judiciary has no jurisdiction over decisions made at the parliamentary or state legislative level, the implementation of the nation’s laws would be affected if pillars such as parliament and state assemblies were constantly at odds with the Federal Court’s decisions.
“The rule of law will collapse if no harmony (exists) between the three pillars, as separation of power requires each pillar to respect their constitutional roles, or else, in its absence, law and order will not function smoothly,” he said when contacted.
However, he said it was possible to formulate a simple methodology to reach a solution to enact state legislation that falls within the spirit and intent of the Federal Constitution.
Earlier today, the Kelantan state legislative assembly unanimously passed a motion to re-enact 16 provisions under the state’s shariah criminal enactment.
The motion, which was read by Kelantan State Assembly Speaker Datuk Mohd Amar Nik Abdullah, received unanimous agreement from all members, including those of the opposition.
Earlier media reports quoted Mohd Asri Mat Daud, the state exco member who is in charge of Islamic affairs, as saying that he would present the motion to a special committee.
Other law experts, such as Rajesh Nagarajan, believed the motion passed in Kelantan’s state assembly today was clearly an act in contempt of court.
“The state assembly, despite knowing full well that it does not have the powers to enact criminal law that falls under the Federal Lists, is behaving in contravention of the Federal Constitution.
“A body, where the individual members have sworn to uphold the constitution, is acting in direct contradiction to the constitution,” he told Scoop.
“I dare say that no state has behaved in such a blatant and illegal manner previously. The state assembly has acted in a contemptuous manner.”
Constitutional expert Datuk Shad Saleem Faruqi said any intent or attempt to reinstate the enactments would be “pointless,” as the apex court’s decision ruling on the matter would prevail.
Shad told Scoop that Kelantan’s unanimous vote to re-enact the provisions are “inessential” due to Article 75 of the Federal Constitution.
“Article 75 has stated that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
“Moreover, currently, it is just a motion (that has been passed). They will still need to get the Sultan of Kelantan, Sultan Muhammad V’s, approval before it can be turned into a bill.
“Even so, the Federal Court’s decision would prevail regardless,” he said.
Similarly, lawyer Datuk Seri Rajan Navaratnam said Kelantan’s state assembly’s move was a futile effort.
“The Federal Court has ruled that the 16 provisions (under Kelantan Shariah Criminal Code (I) Enactment 2019) are unconstitutional as the power to enact such laws falls under the Federal’s List under the constitution.
“Therefore, even if the state’s legislative assembly brought it up to the special committee and re-tabled the motion at the assembly and reenacted it, they could not charge any individual under the provisions as it has been ruled as unconstitutional.
“Or even if there is an individual charged under the provision, the person can then file an application to strike out the charges. The apex court’s decision would prevail,” he said.
On February 9, the Federal Court delivered an 8-1 majority decision, striking down 16 out of 18 provisions in the code contested by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, on grounds of unconstitutionality.
The apex court’s panel, led by Chief Justice Tun Tengku Maimun Tuan Mat, ruled that the state assembly had no power to enact the provisions, as the offences in question fell within the purview of federal law. – March 6, 2024
