PETALING JAYA: The Kelantan State Assembly must respect the supremacy of the Federal Constitution, opined constitutional experts.
They said the Kelantan state assembly’s decision to relook into re-enacting its 16 controversial provisions in the state’s Syariah Criminal Code (I) Enactment 2019 is mere grandstanding.
They reminded the east coast state that the Federal Court always has the last say.
The state assembly yesterday passed a motion to re-enact the same provisions which was agreed upon by all assemblymen, including two Opposition lawmakers from Pakatan Harapan and Barisan Nasional.
Constitutional expert Prof Emeritus Datuk Dr Shad Saleem Faruqi pointed out that neither Parliament nor state assemblies can violate the Federal Court’s decision in the issue of federal-state division of powers.
He said should the re-enactment materialise, this would open up the possibility of the case being brought to the courts again.
The law professor also reminded Kelantan assemblymen to avoid regarding themselves as being above the law, adding that the Constitution must first and foremost be respected.
“This is ultimately the case of defying the Constitution and this way, they may win some political points with their electorate by saying: ‘Hey look, we passed the law’ but this is very improper from the point of view of our constitution system.
“A few years ago, they (PAS leaders) enacted the hudud law in Terengganu and Kelantan where they also violated the Constitution brazenly.
“They never enforced the (hudud) law because it was clearly unconstitutional, but they kept it in the statute book for the purpose of political show.
“They deliberately ignore the federal law. Their intention was probably to appear as if they have enforced hudud while fully knowing that it is not within their powers,” he said when contacted yesterday.
Melor assemblyman Wan Rohimi Wan Daud tabled a motion to re-enact the 16 provisions during the state assembly sitting yesterday which was approved by Speaker Datuk Mohd Amar Abdullah.
At the moment, the plan to re-enact the provisions has not been finalised as it was only tabled as a motion instead of a Bill.
State executive council member in charge of Islamic affairs Mohd Asri Mat Daud was quoted as saying that he would present the matter concerning the 16 nullified provisions in a special committee before it is brought to the state assembly again.
Prof Dr Nik Ahmad Kamal Nik Mahmood of the International Islamic University of Malaysia said the Kelantan State Assembly would only be wasting its time if it decides to proceed with re-enacting the same provisions.
“There’s a probability of it being considered a political action.
“If they do it while knowing it’s not going to be enforceable, then there is no point having political mileage because at the end of the day, people know it’s not going to be enforced,” he said.
Instead, Nik Ahmad said the state assembly could re-enact the law by making necessary amendments to the provisions so that they would not be against the Federal Court’s decision.
“To do that, they have to make sure the law is consistent with the way the Federal Court has interpreted the provisions on the state item’s ninth schedule.
But this is quite tricky.
“If they want to do this, it would be better for them to consult the Attorney General’s Chambers on this. The new provisions cannot be exactly the same as the ones (nullified).
“The Federal Court’s decision was very clear on the 16 provisions, that they are unconstitutional,” he added.
On Feb 9, the apex court struck down 16 of 18 provisions in the Kelantan syariah criminal code on grounds that they were unconstitutional.
The Federal Court said the state assembly had no power to pass the provisions as part of the enactment as the offences in question were covered under federal law.
