Adding criminal jurisdiction to constitution’s concurrent list a no-go, say experts

“Otherwise, we will have two sets of criminal law and a degree of inequality in treatment and punishment that will breed a sense of unfairness or injustice over time”

(FMT) – Constitutional experts have dismissed a suggestion that the Federal Constitution be amended to allow both Parliament and state legislative assemblies to enact criminal laws, saying it would lead to inconsistencies in criminal proceedings.

“There should only be one set of criminal laws in a country for one set of offences, and everyone should be subject to it.

“Otherwise, we will have two sets of criminal law and a degree of inequality in treatment and punishment that will breed a sense of unfairness or injustice over time,” lawyer Andrew Khoo told FMT.

Khoo said the Federal Court ruling that struck down 16 provisions contained in the Kelantan Syariah Criminal Code (1) Enactment 2019 last Friday was intended to ensure that laws legislated by states do not overlap with federal laws.

It was not intended to “demote” shariah law, as some quarters have claimed, he said.

In the Federal Constitution, matters that are the sole responsibility of Parliament are contained in what is known as the federal list, while those within the jurisdiction of the state assemblies are set out in the state list.

A third list, known as the concurrent list, enumerates matters that are the joint responsibility of Parliament and the state assemblies.

Following the apex court ruling, PAS information chief Ahmad Fadhli Shaari urged the government to include criminal jurisdiction in the concurrent list to empower state assemblies to enact criminal offences, including under shariah law.

However, constitutional lawyer Bastian Pius Vendargon said doing so would give rise to conflicts between federal and state laws.

Vendargon added the overlapping criminal jurisdictions will result in discrepancies in both substantive law and procedural rules, in terms of the penal aspects, and how evidence is gathered and presented in court.

“Previously, we have seen conflicts arise in the sphere of family law between a non-Muslim spouse and a spouse who subsequently converts to Islam,” he said.

Vendargon said one such conflict which existed prior to 2018, occurred when one spouse in a non-Muslim marriage converted to Islam.

He said, at the time, the Law Reform (Marriage and Divorce) Act 1976 (Act 164) only allowed the non-converting spouse to petition for a dissolution of the marriage.

If the non-converting spouse refused to do so, the Muslim partner, having no other remedy in civil law, would initiate divorce proceedings in the shariah courts, creating a clash between the civil and shariah courts.

Vendargon said a 2017 amendment, which came into force the following year, resolved the dispute by allowing the Muslim convert to also petition to dissolve the marriage.

However, he said, numerous other conflicts still exist between the respective jurisdictions of the civil and shariah courts, including in the area of the unilateral conversion and custody of underage children.

Allowing states to enact laws governing criminal offences will only add to the confusion, Vendargon said.

Meanwhile, constitutional scholar Aziz Bari said another reason why the Federal Constitution should not be amended to give states power to legislate criminal offences is because they lack the full range of facilities needed to handle criminal cases.

“This involves investigative procedures and the availability of advanced laboratories for DNA and chemical substance analysis.

“The reality is that there are financially weak states that cannot afford to adequately staff law enforcement, or provide the necessary facilities for criminal investigations,” Aziz told FMT.

He said that PAS should focus on matters that fall within the state’s purview, citing long-standing water supply issues in Kelantan as an example.