KUALA LUMPUR – The onus in amending the federal constitution in giving a clear distinction on the power of a state, whether in making or punishing an offence, falls under the federal government.
Lawyer Mohamed Haniff Khatri Abdulla, who appeared for the Muslims Lawyers Association of Malaysia, as one of the watching briefs in the constitutional challenge brought by lawyer Nik Elin Ruzina Nik Abdul and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman against the Kelantan state government, told media after today’s proceeding.
He said whatever outcome decided by the apex court on the constitutional challenge suit should be respected and abided by, but it would not have the same weight of impact as a constitution amendment by the government.
“If there is any issue of constitutional provision in the country’s highest law, then the government, who is a concerned party in the matter, or the opposition parliamentarian should take the right advice and initiate the necessary amendment to the provisions.
“So no matter what the decision (from the suit) is, we, the lawyers, unanimously recommend to the current government to bring the necessary amendment to the constitutional bills, in efforts to clarify the provisions (that were deemed questionable).
“The amendment would ensure that there is no loophole, or provisions left unclear (anymore) because the court only has the power to issue a decision based on the provisions under the federal constitution. They (the court) cannot rewrite the federal constitution.
“We have done so before, by implementing Undi18 (that lowered the voting age), or the hazy Anti-Hopping law. Amendments can be made,” he said.
Earlier Haniff submitted to the nine-panel of justices led by Chief Justice Tun Tengku Maimun Tuan Mat, that the state law should not be rendered null and void just because a particular area of law under federal power and Islamic law intertwined.
The submissions were made in disagreement with Nik Elin’s petition.
Also appearing in today’s proceedings were the Federal Territories Islamic Religious Council, Terengganu, as well as Perak Islamic Religious and Malay Customs Council, who also disagreed with the petition.
The mother-daughter duo have challenged the constitutionality of 18 provisions under the Kelantan Shariah Criminal Code (I) Enactment 2019, where they seek a declaration from the Federal Court to nullify these provisions, arguing their similarity to existing provisions under the Federal List and offences under the Penal Code.
The contested Shariah provisions include Section 13 (selling or giving away a child to non-Muslim or morally reprehensible Muslim), Section 14 (sodomy), Sections 16 and 17 (sexual intercourse with a corpse and with a non-human), as well as Section 42 (abuse of halal label and connotation). – November 20, 2023