I WAS present at the Palace of Justice last Friday morning, listening as Chief Justice Tun Tengku Maimun Tuan Mat read the concise and comprehensive summary of the majority judgment in the petition challenging the constitutionality and legality of 18 provisions under the Kelantan Syariah Criminal Code Enactment ( 1) 2019.
Ever since they embarked on this journey in 2022, there has been a lot at stake for petitioners Nik Elin Zurina Nik Abdul Rashid and her daughter Yasmin, who are lawyers. Their lives have been significantly disrupted, and issues such as personal safety continue to be ongoing concerns.
They decided to do what they did, not only because they were concerned about constitutional integrity but also as a matter of public interest, which could potentially affect many who live in this country.
It is not an exaggeration to say that the Malaysian people owe these two courageous women, who were unfairly labeled by some as busy bodies, a debt of gratitude for submitting this petition.
At a press conference later, Kelantan Deputy Chief Minister Datuk Dr Mohamed Fadzil Hassan lamented why it was necessary to challenge these provisions as they had already been on the books for several years.
This goes to the heart of the problem, which this case vividly demonstrates.
Over the past few decades, many state legislative assemblies around the country have tabled, passed and gazetted similar provisions and enactments into law by different state governments. These include Penang, Terengganu, Perak and even the Federal Territories. They cover offenses such as incest, sexual harassment, sodomy, vice, acting as intermediaries for certain offenses and destruction of places of worship.
Former law minister Datuk Seri Takiyuddin Hassan is correct to point out that this Federal Court judgment is likely to have a ripple effect on related syariah enactments across the country.
Kelantan will now have to drop these provisions as they overlap with existing legislation and offenses already covered under civil law. Other states must also be prepared to do the same.
The laws being challenged and overturned by the Federal Court were not determined or ordained by Allah but were enacted by the state legislature for use by the Syariah Courts.
From the beginning of the ruling, Maimun clarified and emphasized the Federal Court’s commitment to upholding the Federal Constitution and ensuring justice for all Malaysians, irrespective of religion or ethnicity.
Islam was not and is not in jeopardy. Nik Elin and Yasmin’s case and the rendered judgment was not intended to undermine Islam or “bury” the Syariah Courts as alleged by some senior lawyers.
Neither should it be interpreted as a victory over Islam. However, this case is a reminder for states not to overstep or exceed their powers, mandate and responsibilities entrusted to them by the Constitution.
The problem is not with the Federal Constitution, hence, it does not need to be amended or to expand the scope of state powers under the Concurrent List for Parliament and Legislative Assemblies to make laws.
The Syariah Judiciary Department concurred with the Federal Court’s judgment, saying that the affected provisions exceeded the jurisdiction granted to the state, and that the legislative assemblies had a role to play in ensuring that every enactment enacted does not exceed the powers provided to it. This case never impinged upon the Islamic doctrine as emphasized by the chief justice.
However, for years, the state legislative assemblies, aided by their respective legal advisors, seem to have willfully or unwillfully taken a collective approach to pass state legislation for offenses which are already covered under the federal law.
Unfortunately, in response to last week’s ruling, there are those calling for a constitutional amendment to be introduced to expand the Concurrent List. Rather than ensuring that state legislative assemblies comply with the Constitution, their proposed solution is to amend the latter. This would be a mistake.
Some MPs are accusing or gaslighting others of having a topsy-turvy, skewed and colonialist interpretation of the Federal Constitution. These MPs appear to be intent on igniting and stoking culture wars by creating fear and insecurity, and preying on gaps in public knowledge and understanding.
The tone of their statements seems to question and undermine the bedrock of Malaysia’s secular Constitution. In Malaysia, Islam’s position is not threatened but protected by secular law.
Claiming that the syariah system is weak, disempowered and threatened is a straw man argument. It distracts from the socioeconomic and everyday issues faced by vulnerable people, creates enemies where there are none and seeks to create suspicion, distrust and division.
The authority of Syariah Courts does not need to be strengthened, for it was never weak.
If such MPs believe that Islam is no longer protected by the Federal Constitution, they should resign in protest.
Many in this country are exhausted by the never-ending games of one-upmanship by political parties eroding our civil liberties, especially those of Muslim Malays, continually needing to show that they are the self-appointed defenders or champions of the faith.
The stairs of palaces are worn down by politicians who claim to speak for the rakyat and in the rakyat’s name. Unfortunately, most of them do not have a clue.
In the weeks ahead, those who have been enjoying the schadenfreude watching their Kelantan colleagues struggle with this new reality, will need to look at similar unconstitutional provisions in the states that they control, and repeal them.
Overall, it may seem that Nik Elin and Yasmin have flipped the table but what they have done is remind the people and those in power of the responsibility to uphold and strengthen constitutional principles, to build a fair and just society for all Malaysians and to work towards a more equitable society. This must be demonstrated in words and deeds.
Azrul Mohd Khalib
