KUALA LUMPUR – Proposed amendments to the Shariah Courts (Criminal Jurisdiction) Act 1965, also known as RUU355, should be under the jurisdiction of state legislatures, not Parliament, said prominent lawyer Mohamed Haniff Khatri Abdulla.
Speaking to Scoop, Haniff based his argument on the Federal Constitution, which stipulates that states are afforded the authority to create laws and punishments for shariah crimes.
The legal practitioner also pointed to the Federal Constitution’s Ninth Schedule, List II, Item 1, which records that shariah criminal laws only have jurisdiction over Muslims on matters against Islamic teachings.
“Since shariah courts are under the jurisdiction of state assemblies and shariah criminal offences are also formed by state assemblies, it would be wrong from a constitutional point of view for punishments under RUU355 to be determined by Parliament at the federal level,” he said.
“The Shariah Courts (Criminal Jurisdiction) Act was formed by Parliament in 1965, which is 23 years before amendments were made to the Federal Constitution to recognise shariah courts as an independent court equal to civil courts.
“In relation to RUU355, has Parliament wrongly interfered with the jurisdiction of establishing punishments, which is reserved for states?” he asked.
He also suggested conducting prompt research by relevant authorities to verify the legitimacy of the national governance system concerning shariah criminal laws under the Federal Constitution.
Haniff also said that recent legal cases had shown that the Federal Court could strike out provisions under states’ shariah criminal laws if state assemblies were found to have wrongly interfered in Parliament’s jurisdiction to enact laws.
“Can it not be said that in the case of RUU355, Parliament has then interfered in the state assemblies’ jurisdiction to establish punishments?” he queried.
The lawyer was referencing the apex court’s recent move to declare 16 provisions in Kelantan’s shariah criminal code as unconstitutional when deciding on a challenge filed by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter.
The Federal Court, in an 8-1 split decision, ruled that the Kelantan assembly had no power to enact 16 provisions in the Kelantan Shariah Criminal Code (I) Enactment 2019, as the offences in question fell within the purview of federal law.
Meanwhile, Haniff said that increased punishments for shariah criminal offences, as proposed by RUU355, should be tabled and approved by state assemblies immediately to ensure that punishments were more in line with community wishes and standardised across states.
“It would be unfair for poor and more developed states to have the same punishments, as they should be based on the state assembly’s own decision to determine the appropriate punishment rate,” he added.
On February 18, Minister in the Prime Minister’s Department (Religious Affairs) Datuk Mohd Na’im Mokhtar said that RUU355 was expected to be tabled in Parliament this year.
He said that the amendments would be presented in Parliament after engagement sessions with stakeholders in every state had concluded and necessary actions were taken.
In 2016, PAS president Tan Sri Abdul Hadi Awang submitted RUU355 as a private member’s bill to enact harsher punishments for shariah offences by raising the shariah courts’ maximum sentencing limits to 30 years’ jail, a RM100,000 fine, and 100 strokes of caning.
Currently, the limits are a jail term of three years, a RM5,000 fine, and six strokes of caning. – February 20, 2024