KUALA LUMPUR, March 8 — Malaysian Bar president Karen Cheah today said it was disappointing that there was blatant disrespect towards the courts, following news that the Kelantan state legislative assembly unanimously approved a motion to re-enact 16 Shariah criminal provisions in a state law that had been struck down by the Federal Court.
In her opening address at a constitutional law lecture today, Cheah said the Federal Constitution’s Article 4(1) makes it clear that it is the Federal Constitution that is supreme, instead of Parliament or any state legislative assemblies and that this has been reaffirmed many times by the Federal Court in various cases.
Noting that the Federal Constitution limits what Parliament and state legislative bodies could make laws on, Cheah said court challenges could be brought — just like the one by two Malaysian Muslim women against 18 of Kelantan’s Shariah criminal provisions — if laws are made when the legislative body did not have power to do so.
Noting that the Federal Court's 8-1 decision on February 9 ruled that 16 of the 18 challenged provisions in the Kelantan state law were unconstitutional as the Kelantan state legislature has no power to make such laws (as these matters were under the federal legislature’s lawmaking powers), Cheah said any confusion caused by “certain irresponsible parties for their own personal or political mileage” arises from a “complete lack of understanding, respect and appreciation” of the Federal Constitution.
“This confusion, lack of understanding and respect for the Federal Court decision is obvious when on March 6, 2024, which was just two days ago, it was reported that the Kelantan state legislative assembly unanimously approved a motion to re-enact the 16 provisions that were struck down by the Federal Court.
“It is really an understatement to merely state my disappointment over the refusal of certain quarters to legitimise and accept graciously the decision of the Federal Court, the blatant disrespect to the judiciary, and the recalcitrant refusal to understand the legal framework and values of our Federal Constitution, especially when Nik Elin’s case is a clear cut, straightforward legal challenge on the competency and power of the Kelantan state legislature to enact laws on the 16 offences which is under the purview of the Federal List,” she said.
In the Federal Court case, Kelantanese lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter’s challenge was based on their stand that Kelantan lacked the lawmaking powers as a state to make laws regarding the 18 Shariah provisions and their view that it is Parliament which has the powers under the Federal Constitution to legislate on these matters.
Cheah noted that Chief Justice Tun Tengku Maimun Tuan Mat — who chaired the Federal Court’s nine-judge panel — had in delivering the decision said that the issue in the case “has nothing to do with the position of Islam or the Syariah Court here in the country” and that the main issue was whether the Kelantan state legislature had enacted those provisions within the limits permitted under the Federal Constitution.
But Cheah noted that from the start of Nik Elin’s court case and even before the Federal Court’s landmark decision was delivered on February 9, there have been certain groups which had “highly politicised, manipulated and speculated” on this case without any legal basis and foundation and for their “own personal gain and agenda”, and that there have been attempts by certain quarters to paint the case as an interference in how Islamic laws are implemented in the states.
She stressed that lawyers have the duty to always uphold and safeguard the Federal Constitution and the rule of law, and that politicians who are MPs and judges also have such a duty as they had taken an oath to uphold the Federal Constitution.
“Let us remember that Nik Elin Zurina, the lawyer-litigant, and her daughter have been cyberbullied, intimidated, harassed and worse — received death threats on a continuous basis even after the Federal Court’s decision was delivered.
“This is clearly an effort to dissuade and make anyone — who wishes to institute a similar challenge in the future — to think twice or suffer the same mental and emotional abuse that Nik Elin and her daughter have experienced, and continue to experience until today. These actions of intimidation, harassment, bullying and issuing of death threats is highly condemned by the Malaysian Bar,” she said.
Cheah made these remarks during her opening address at a lecture held at the Raja Aziz Addruse Auditorium at the Malaysian Bar’s building.
The lecture titled “Federal List vs State List — Understanding the Legislative Framework under the Federal Constitution” was delivered by lawyer Datuk Malik Imtiaz Sarwar.
The lecture was co-organised by the Bar Council’s National Young Lawyers and Pupils Committee (NYLPC), Bar Council’s Constitutional Law Committee and the Bar Council’s Human Rights Committee, with NYLPC chair Kee Hui Yee moderating the talk.
Imtiaz, who represented Nik Elin and her daughter in their constitutional challenge of the scope of Kelantan’s lawmaking powers as a state, today gave a detailed overview of key provisions in the Federal Constitution that were relevant to the framework for lawmaking by Parliament and by the respective state legislatures.
His lecture included explanations on the Federal Constitution’s Articles 4, 74, 75, 76, 76A, 77, 80 as well as the Ninth Schedule’s List I (Federal List) and List II (State List) and Concurrent List (which are areas where both Parliament and state legislatures can make laws on) and supplementary list (for Sabah and Sarawak).
He gave various examples of how these constitutional provisions would apply, such as how trade, commerce and industry would for example fall under the federal government’s lawmaking powers instead of state governments’ lawmaking powers, as it is an item that is in the Federal List.
As for matters which are under states’ lawmaking powers, Imtiaz said this would include matters such as local government and land.
During a question-and-answer session that lasted nearly half an hour at the lecture, Imtiaz responded to a question by the audience on what the Kelantan state government can now do as it was said to want to bring back the 16 Shariah provisions struck down by the Federal Court.
Imtiaz said Kelantan currently has only expressed intention to re-enact those provisions, and said has the freedom to express and talk about such ideas.
“I think as things stand, Kelantan is free to do what it wants to do. It wants to talk about re-enacting, go ahead, because it can talk about it. They filed the motion to re-enact, but it’s not yet enacted, it’s just the idea of enacting,” he said, and noted that there was mention made in the Kelantan state legislative assembly of the need to further study the matter.
“So giving them the benefit of doubt, there is this notion that they would like it back on the books, but at the same time, they are cognisant of the Federal Court’s decision and are studying to see how they could approach it. I think that’s as far as we can take it at the moment, based on what I’ve read and what I know.
“So I mean it is something that obviously is troubling for them, for the state legislative assembly and the members there, and I think if they want to express a view, why not?” he said, noting that he understands Kelantan to currently only saying that it would like to re-enact those provisions.
Earlier in his hour-long lecture, Imtiaz also gave a brief summary of the Federal Court’s decisions in both the Iki Putra case and the Nik Elin case.
He said the Iki Putra case was quite straightforward as the Shariah criminal provision in a state law was substantially the same as criminal offences that should fall under the federal legislature’s lawmaking powers instead. (In that 2021 case, the Federal Court’s nine-judge panel unanimously declared a Selangor state law’s provision which made unnatural sex a Shariah offence as invalid and having gone against the Federal Constitution, as such offences fall under Parliament’s powers to make laws and not under state legislatures’ law-making powers.)
As for the Nik Elin case, Imtiaz said it was purely about whether matters fall under the states’ or federal lawmaking powers, based on the Federal List and State List in the Federal Constitution.
He said that the 18 Kelantan Shariah provisions which Nik Elin had raised in her court case were substantially the same as existing federal laws on the same matters, and that it was about those matters falling under the federal legislature or Parliament’s lawmaking powers instead of the state.
“So the question then was nothing about ‘is it religion or not, is it religious or not’, it comes back to which list. And if it’s in the Federal List and no one is challenging those federal offences, how could it be in the state list,” he said.
“No discussion at all about ‘what is religious law, is it haram, is it not haram, is it something that is supposed to be done in Islam’ and all of that. No discussion on any of that, we made no submission on that at all, and we just harkened back to Article 4(1), Article 74 and the List.
“So this is a big step forward in terms of understanding our legislative fields, because in a way what has happened, in my respectful view, is that we have ensured that outcomes are dictated by the Constitution itself and not by other considerations that are extra or extraneous to the Constitution. No doubt one can say the Constitution is a living document, but ultimately the interpretation of the Constitution is something that cannot be done whimsically, there is a process by which the Constitution is interpreted,” he added.
“So I think that’s all, I hope this has helped you understand what the controversy is about and why there’s nothing really controversial about it,” he later said when concluding his lecture before the question and answer session.
Later when met by reporters and asked to address critics’ allegations that the Federal Court case involving Nik Elin’s challenge would affect matters such as Islam, Imtiaz said the case really revolves around the scope of lawmaking powers that legislatures have on any matter — including on matters without any aspect touching on religion.
“So the answer would be this is really not about religion, it’s about the power to make law, and so when legislatures make law, the same set of rules applies to every time it makes law on anything, that’s all, so this was never a case about religion. It was a case about the power to make law,” he told reporters.
When commenting on the impact of this Federal Court case in relation to criticism of it allegedly affecting Islam or potentially other states which also have Shariah state laws, Imtiaz said the constitutional principles apply “across the board to all states” and to all lawmaking bodies and which would mean that states would have to comply with the Federal Constitution when making state laws like these.
“So I can’t see an argument that ‘this would be disruptive’ is tenable, I don’t think that argument is tenable because ultimately it comes back to whether there is or is not the power, so the fact that other states may have made this law must necessarily mean that in light of this decision, those states will have to relook that legislation to bring it into conformity,” he said, noting that it appears that some states have started looking into doing so.
Asked to elaborate on what he meant when he said the constitutional principles on lawmaking applies across the board, Imtiaz said that it would cover all types of laws.
“Any state law, be it on Islam or local governance or anything, has to be in the state list or concurrent list, it doesn’t matter that laws have been made that go beyond that, that doesn’t make it right. So if there’s a challenge and the court says this is the limit and these laws have overstepped, then that’s the end of it, isn’t it?” he said, further explaining that this case gives guidance on how Islamic criminal matters can be brought into conformity with the Federal Constitution and noted that all laws made by states must fall within the lawmaking power of the states.
