Ex-CJ Tun Hamid says Kelantan's constitutional clash already obvious 10 years ago, even more than 16 provisions could be nullified

Malay Mail

KUALA LUMPUR, Feb 15 — Former chief justice Tun Abdul Hamid Mohamad has chastised critics of the Federal Court’s decision to declare 16 out of 18 Kelantan Shariah provisions null as being “uninformed” of legal matters, saying he has to stop short from labelling them “ignorant”.

Writing on his website yesterday, Abdul Hamid said he had already brought up the constitutional clash in Kelantan’s state enactments as early as 2014, and said that the Federal Court could have struck down more than 16 of the provisions if more had been challenged.

“Accusing Muslim civil court judges of ‘refusing Shariah’ reveals a lack of understanding about the existing constitutional and legal provisions to which everyone, including Shariah court judges, is bound. It’s important to note that I refrain from using the term ‘jahil’ as it may come across as too harsh,” he wrote, using the Arabic-Malay word for “ignorant” — usually used in religious context.

“Judges in civil courts are obligated to base their decisions on the Constitution and the applicable laws. Therefore, if a civil court judge adheres to these principles and is accused of rejecting Shariah, a similar argument can be made for a Shariah court judge who, for instance, does not impose stoning on an adulterer due to the absence of such a punishment in the relevant legal framework. In both instances, judges are simply following the laws and regulations under which they operate.”

He recalled how a decade ago the Kelantan government had tried to enact such laws that they had no jurisdiction to do so as it went against the Federal Constitution. However the Kelantan state government still went ahead and approved the new laws following a debate in the state assembly on March 18, 2015.

He accused the Kelantan state government of enacting laws before getting prior proper approval or going through the proper channels like Parliament. As such he said condemning the Judges or supporters of the decision was silly.

Abdul Hamid recalled how on March 18, 2015, the Kelantan State Legislative Assembly saw the introduction and approval of the Shariah Criminal Code Enactment Bill (II) (1993) 2015. Interestingly, it garnered support from Umno state assembly members, who, fearing accusations of Shariah rejection, found themselves in a delicate position. Unable to dismiss it as invalid due to potential conflicts with the Constitution and Federal law, they faced a dilemma.

“Since January 7, 2014 I had consistently asserted in my writings and speeches that a portion of the Shariah Criminal Code Enactment (II) 1993 (Kelantan) is null and void. This is due to the contention that it introduces offences falling under Federal jurisdiction. This was 10 years ago.

“For offences falling within the state’s jurisdiction, I contend that they are similarly invalid and void as they appear in contradiction with the provisions of the Federal law, specifically Act 355,” he said, referring to the Shariah Courts (Criminal Jurisdiction) Act 1965.

Abdul Hamid said the use of the term “Islamic Law” does not exist in the Constitution. Criminal law falls under federal jurisdiction, and while the Constitution does not explicitly define “criminal law”, it is understood that existing laws, such as the Penal Code from the time of the Constitution’s drafting, are encompassed within this category.

He further explained that the term “Islamic criminal law” is not expressly used in the Constitution, but rather, it specifies the authority to address offences committed by individuals professing the Islamic faith against the tenets of that religion, excluding matters outlined in the Federal List.

The three conditions were offences committed by Muslims, offences against religious precepts, and not covered in the Federal List. It is crucial to note that the DUN can only enact criminal laws if they fulfil all three conditions.

“A decade on and though physically constrained my initial assertion remains valid. The Federal Court has affirmed the invalidity of 18 provisions in the enactment, deeming them void due to their nature falling within the ambit of matters exclusively under the jurisdiction of Parliament as outlined.

“Notably, Nik Elin contested only 20 provisions, and upon a thorough examination of my writings and speeches over the past 10 years, it becomes apparent that there are additional provisions worthy of challenge,” he added.

Lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman challenged the constitutionality and validity of 18 provisions under the Kelantan Shariah Criminal Code (l) Enactment 2019, claiming that the Kelantan State Legislature does not have the power to enact laws on these offences because there are federal laws covering the same.

The Federal Court decided in their favour last week and declared that 16 out of 18 provisions of Kelantan’s Shariah Criminal Code (I) Enactment 2019 were invalid, as the Kelantan state legislative assembly had overstepped its powers or had no powers to make such laws.