KUALA LUMPUR – Amendments to the federal constitution should be made immediately to prevent anyone from disputing the jurisdiction of state legislatures, state assemblies, and the Malay Rulers as religious leaders and guardians of Islam in each state.
PAS deputy president Datuk Seri Tuan Ibrahim Tuan Man said that this is due to the clear distinction between the trial methods and the qualifications required to be a judge in a shariah court compared to those in civil courts.
He said even the conditions for being a witness and Islamic legal methods follow their own systems.
“Therefore, to say that the civil court is the same when hearing takzir cases (shariah criminal offences) is incorrect.
“This is because the conditions of witnesses and judges in the civil courts do not meet the requirements in the Islamic legal system.
“This is the colonial effect left (from when the country was ruled by Western powers), which indirectly changed the legal landscape of our country, despite various efforts taken to form the shariah court system.
“However, it is still far from attaining the full embodiment of Islamic law,” he said in a statement.
The Kubang Kerian MP was responding to the Federal Court ruling on Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid’s case.
He said the overlap of offences between shariah courts and civil courts should be addressed comprehensively, considering the existing rules that delineate jurisdiction between the states and federal.
“Some of the bills discussed in the state assembly have already undergone scrutiny and examination by the state legal adviser, who is a representative from the Attorney General’s Chambers.
“He must have conducted thorough research before the bill was drafted for presentation to the state assembly. Following its approval, the bill will be subsequently submitted to the Malay Rulers in each state, who serve as religious leaders of their respective states,” he said.
He also noted that the Federal Court’s decision has generated profound disappointment among Muslims in the country.
The Chief Justice Tun Tengku Maimun Tuan Mat’s assertion that the decision is unrelated to Islamic doctrine but rather hinges on the interpretation of the law warrants collective reflection in the context of respecting the position of shariah in the country’s constitution.
“The primary foundation for the judgement lies in the fact that the offence is already outlined in the Penal Code. Consequently, the shariah court should refrain from adjudicating the same case.
“So the question arises: who initially drafted the enactment for the repealed offence? It is known that Islamic law was established much earlier, predating the arrival of Western powers to Malaya and even preceding the existence of the Federal Constitution,” he said.
He also went on to say that the jurisdiction of the shariah court is diminishing, and its role in upholding God’s commands is becoming increasingly challenging.
“This decision underscores the marginalisation of Islamic law, originally intended as an absolute guide in the implementation of God’s teachings, now overshadowed by secular laws created by humans,” he said.
Yesterday, the Federal Court delivered the majority ruling in favour of Nik Elin and her daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman, when it struck out 16 out of 18 provisions challenged by the duo.
The duo, in 2022, initiated a constitutional challenge against 20 provisions under the Kelantan enactment.
However, they dropped two sections, namely Section 5 (false claims) and Section 37 (gambling), at the onset of the suit hearing.
Apart from these two, Tengku Maimun also said that Section 13 (selling or offering children to individuals who are not of the Muslim faith or to morally objectionable Muslim individuals) and Section 30 (language that has the potential to incite unrest or disturb public order) out of the remaining 18 remaining provisions were legal. – February 10, 2024