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From Hafiz Hassan
PAS secretary-general Takiyuddin Hassan bemoaned the decision of the Federal Court striking down the 16 provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019 as a “dark day in history for Muslims”.
“This is a ‘Black Friday’,” he said.
How is it so? Almost 10 years ago, in 2015, former chief justice Abdul Hamid Mohamad said: “The Federal Constitution has clearly divided jurisdiction over criminal law and offences against Islamic religious orders. Problems arise when the state government wants to take over the power to make laws for criminal offences that are under federal jurisdiction.”
Hamid was addressing Kelantan’s Syariah Criminal Code (II) Enactment 1993, which he said was null and void because it was unconstitutional as it created hudud offences, including crimes under federal jurisdiction, besides legislating on other federal criminal law offences.
The former chief justice listed the reasons as follows:
1. The state assembly makes the law as a law that is on the state list, while some of the offences are “criminal law” under federal jurisdiction. The Ninth Schedule (of the Federal Constitution) has not been amended to place the offences on the state list.
2. Parliament has not given permission to state assemblies to enact laws with respect to such offences. Even if subsequently, permission is given, it will not make the law valid, because when it was made, it was made without jurisdiction.
3. Even if Parliament gives such permission, the offences remain criminal law under the jurisdiction of the civil courts and not offences on the state list because the Ninth Schedule has not been amended to transfer such offences from the federal list to the state list. By reason of such offences remaining criminal law, the law cannot be made applicable to Muslims only. It violates the provisions of Article 8 of the Federal Constitution.
4. On the offences on the state list (such as adultery and drinking of intoxicating drink), the law violates the provisions of the Syariah Courts (Criminal Jurisdiction) Act 1965.
Hamid was aware that his words might upset some people, but he was just being honest “about the real facts in terms of the constitution and the law”.
He had then believed that the constitutional issue would go to the civil court, saying: “I would like to see what the Federal Court’s decision would be.”
On Friday (Feb 9), the whole nation saw and witnessed it.
Former religious affairs minister Mujahid Yusof Rawa has rightly called on PAS to embrace the spirit of the Federal Court’s decision by working on “improving the process of enacting laws linked to Shariah criminal offences”.
Meanwhile Umno deputy president and foreign minister Mohamad Hasan on Saturday said that the party would urge the relevant authorities to look into amending the Federal Constitution in order to strengthen Shariah law if necessary.
Yet, Hamid had already suggested what he called “The Way Out” in 2015.
Hafiz Hassan is an FMT reader
The views expressed are those of the writer and do not necessarily reflect those of FMT.
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