Syariah law case: Making a mountain out of a molehill?

On May 25, 2022, Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed a petition to challenge the constitutionality of 18 provisions in the Kelantan’s Syariah Criminal Code (I) Enactment 2019.

The basis of the petitioners' claim is rather straightforward, which is that the Kelantan state legislative assembly did not have the required powers to create those 18 syariah provisions in state law.

Her constitutional challenge is made pursuant to Article 128(1)(a) of the Federal Constitution. Since the court's jurisdiction has been invoked to declare the validity of such a state law, the federal court is the sole competent authority to make such a declaration pursuant to Article 4 (4) of the apex law.

Legally speaking, challenging the invalidity or constitutionality of any law - even a religious enactment - is nothing extraordinary except, perhaps, in Malaysia.

In the case of Muhammad Aslam Khaki vs the Federation for Pakistan Pakistan PLD 2010 Federal Shariat Court 191, the petitioner in that case had filed a Shariat Petition No.2/I of 2006 in order to challenge Articles 8 and 25 of the Prohibition (Enforcement of Hadd) Order, 1979 on the grounds that those two provisions were violative of the injunctions and spirit of Islam. Hadd is a singular noun of hudud.

The case was heard before the Federal Shariat Court in Pakistan and having heard the arguments, the court unanimously decided to dismiss the application.

Though the court dismissed the application, it never accused the petitioner of making an attempt - via his application- to annul the Quran or the hadith, despite clearly challenging the validity of the Islamic criminal law on drinking liquor.

In Nik Elin's application, on the other hand, she never sought to challenge the sanctity of Islamic law, which under the existing constitutional framework is duly reserved as the sole monopoly of the state's jurisdiction.

She merely questioned the jurisdictional competency of the state legislature in Kelantan in criminalising certain syariah offences as she is of the view that such jurisdiction is only vested in Parliament.

The Federal Constitution has clearly demarcated the legislative boundaries of Parliament and state legislature in their law-making enterprises.

Needless to say, our apex law does not bar Nik Elin or anyone for that matter from making such an application. Unfortunately, some irresponsible elements have been trying to hammer home these uncalled-for-remarks that “there is an attempt to wipe out the Quran and hadith”.

I am of the view that Nik Elin’s suit would be a matter of public interest, especially in drawing out clear constitutional guidelines of legislative competency on matters entailing grey areas.

She views the sole power to legislate some criminal offences should only be given to Parliament as criminal matters fall squarely under the federal list.

But some have different views. Those 18 offences are considered tazir offences, thus they are part of criminal offences under Islamic criminal law.

Hence, they fall under the state list as in pith and substance they deal with Islam. Ergo, the state legislature is duly conferred with such a jurisdictional competency.

While it is to be expected for political parties to gain some political mileage out of this issue, their careless action in making a mountain out of a molehill from this inflammatory issue is, however, deeply regretted.

May common sense prevail. - Mkini

---

MOHAMED HANIPA MAIDIN is a former MP and former law minister. He was also a practising lawyer for almost 25 years.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.