Kelantan assembly in contempt if struck-down laws re-enacted, says lawyer

Bastian Pius Vendargon says any re-enactment of the laws will give rise to a constitutional crisis and must be handled carefully by all pillars of government.

(FMT) – The Kelantan state assembly will be seen as disrespectful and contemptuous if it attempts to re-enact the provisions already declared unconstitutional by the Federal Court, a lawyer says.

Constitutional lawyer Bastian Pius Vendargon said the apex court was the constitutionally empowered body to decide on issues surrounding the competency to legislate by reference to the powers set out in the Federal Constitution.

“Even if the enactment is passed, those offending provisions remain unconstitutional because of the incompetence of the state legislature to legislate the same,” he told FMT.

Vendargon said any such law, if re-enacted, would once again be open to challenge by anyone with locus standi. However, he said the attorney-general would be the best person to bring a case.

He said the Kelantan state assembly’s attempt to overturn the Federal Court decision was an act of “defiance” and could lead to a confrontation with the judiciary, specifically the apex court.

“It may well create tension and a constitutional crisis. The matter must be carefully approached by all the pillars of the constitution,” said Vendargon.

His comment follows Malaysiakini’s report that the Kelantan legislative assembly had passed a motion to re-enact 16 provisions in the state’s Syariah Criminal Code (I) Enactment 2019 that were nullified by the Federal Court on Feb 9.

The apex court had, in a majority ruling, struck down the provisions on grounds that the Kelantan assembly was incompetent to pass them as they were in respect of matters covered under federal law.

Kelantan legislative assembly speaker Amar Nik Abdullah said the motion read: “The state legislature records its regret and sadness over the nullification of the 16 provisions and urges that the provisions be re-enacted.”

He said after scrutinising the motion, he found that it fulfilled the three criteria to be accepted for debate, noting that it was on a specific and important issue, one of public interest and must be expedited.

All assemblymen were reported to have agreed to the private motion proposed by PAS’s Melor representative Wan Rohimi Wan Daud, also a lawyer.

The motion was passed after three assemblymen debated it in the state chamber.

According to Sinar Harian, state executive councillor Asri Mat Daud, who has charge of Islamic affairs, said he would present the matter to a special committee.

He said the committee would discuss the nullified provisions before they are presented for re-enactment.

Meanwhile, lawyer Haniff Khatri Abdulla said it remained to be seen if the re-enacted provisions were identical to the ones nullified by the court.

“If that is the case, it may be in defiance of the Federal Court ruling,” he said.

Haniff said the legislature should wait for a special committee chaired by the Selangor sultan to streamline shariah laws before taking any further action.

“An amendment to the Federal Constitution should be done first on matters related to the federal and state lists,” he said.