LETTER | Like Nik Elin and Yasmin, we should all be busybodies

LETTER | I was present at the Palace of Justice last Friday morning, listening as Chief Justice Tun Tengku Maimun Tuan Mat read the concise and comprehensive summary of the majority judgment in the petition challenging the constitutionality and legality of 18 provisions under the Kelantan Syariah Criminal Code Enactment (1) 2019.

Ever since they embarked on this journey in 2022, there has been a lot at stake for petitioners Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman, who are both lawyers. Their lives had been significantly disrupted, and issues such as personal safety were and continue to be ongoing concerns.

They decided to do what they did, not only because they were concerned about constitutional integrity, but also as a matter of public interest which could potentially affect many who live in this country. It is not an exaggeration to say that the Malaysian people owe these two courageous women who were unfairly labelled by some as busybodies, a debt of gratitude, for submitting this petition.

At the press conference later held in the Palace of Justice's lobby, Kelantan Deputy Menteri Besar Mohamed Fadzil Hassan lamented why it was necessary to challenge these provisions as they had already been on the books for several years.

This goes to the heart of the problem, which this Kelantan case vividly demonstrates.

Over the past few decades, in many state legislative assemblies around the country, similar provisions and enactments have been tabled, passed and gazetted into law by different governments. These include Penang, Terengganu, Perak and even the Federal Territories. They cover offences such as incest, sexual harassment, sodomy, vice, acting as intermediaries for certain offences, and destruction of places of worship.

Former law minister Takiyuddin Hassan was correct to point out that this Federal Court judgment is likely to have a ripple effect on related syariah enactments across the country. Kelantan will now have to drop these provisions as they overlap with existing legislation and offences already covered under civil law. Other states must also be prepared to do the same.

The laws being challenged and overturned by the Federal Court were not determined or ordained by Allah, but were enacted by the state legislature for use by the Syariah Court. From the very beginning of the ruling, Tengku Maimun clarified and emphasised the Federal Court's commitment to upholding the Federal Constitution and ensuring justice for all Malaysians, irrespective of religion or ethnicity.

Islam was not and is not in jeopardy. Neither Nik Elin and Yasmin's case nor the rendered judgment was intended to undermine Islam or "bury" the syariah courts as alleged by some senior lawyers. This should not be interpreted as a victory over Islam. What this case did seek to do was to remind the states not to overstep or exceed the powers, mandate, and responsibilities entrusted to them by the Constitution.

The problem is not the Federal Constitution. The Constitution does not need to be amended. It does not need to widen the scope of state powers under the Concurrent List which both Parliament and legislative assemblies can make laws on.

The Syariah Judiciary Department concurred with the Federal Court's judgment saying that the affected provisions exceeded the jurisdiction granted to the state and that the legislative assemblies had a role to play in ensuring that every enactment enacted did not exceed the powers provided to it. This case never impinged upon Islamic doctrine as emphasised by the chief justice.

However, for years, these state legislative assemblies aided by their respective legal advisers seem to have wilfully or unwilfully taken a collective approach to pass state legislation for offences which were already covered under federal law.

Ruling aftermath

Unfortunately, in response to last week's ruling, there are now those who are calling for a constitutional amendment to be introduced to expand the Concurrent List. Rather than ensuring that the state assemblies comply with the constitution, their proposed solution is to amend the latter. This would be a mistake.

Surprisingly, some MPs are now accusing or gaslighting others of having a topsy-turvy, skewed, and colonialist interpretation of the Federal Constitution. These MPs appear to be intent on igniting and stoking culture wars by creating fear, and insecurity and preying on gaps in public knowledge and understanding. Take a look at family WhatsApp groups.

Worse, the tone of their statements seems to question and undermine the bedrock of Malaysia's secular constitution. In Malaysia, Islam's position is not threatened but in fact, protected by secular law.

Claiming that the syariah system is weak, disempowered and threatened is a straw man argument. It distracts from the socioeconomic and everyday issues faced by vulnerable people, creates enemies where there are none, and seeks to create suspicion, distrust and division. The authority of Syariah Courts does not need to be strengthened, for it was never weak.

If such MPs believe that Islam is no longer protected by the Federal Constitution, they should resign in protest.

Many in this country are exhausted by the never-ending games of one-upmanship by political parties eroding our civil liberties, especially those of Muslim Malays, continuously needing to show that they are the self-appointed defenders or champions of the faith. The stairs of palaces are worn down by politicians who claim to speak for the rakyat and in the rakyat's name. Unfortunately, most of them do not have a clue.

In the weeks ahead, those who have been enjoying the schadenfreude watching their Kelantan colleagues struggle with this new reality, will need to look at similar unconstitutional provisions in the states that they control and repeal them.

Overall, it may seem that Nik Elin and Yasmin have flipped the table, but what they have instead done is to remind the people and those in power the responsibility to uphold and strengthen constitutional principles, to build a fair and just society for all Malaysians, and to work towards a more equitable society.

This must be demonstrated in both words and deeds.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.