Lawyer calls Kelantan’s plan to restore nixed shariah provisions contempt of court, others say ‘wordplay, linguistic gymnastics’ can’t fix unconstitutionality

By admin-s On Mar 8, 2024

You can’t simply make a new law when it still goes against the reasoning of the court

(MMO) – The Kelantan legislative assembly’s plans to re-enact the same 16 shariah criminal offences in the state’s laws will amount to “contempt” of the Federal Court, since Malaysia’s highest court had already ruled that the state has no power to make such laws, a lawyer said.

When contacted by Malay Mail, several lawyers said Kelantan’s planned new provisions would still be unconstitutional even if the state government modifies the language used, as the Federal Court decided that only the federal government has the power under the Federal Constitution to make laws on criminal offences.

Constitutional lawyer Surendra Ananth when contacted said Kelantan “can’t reenact the same laws” found to be unconstitutional.

“The Federal Court has already determined that the state has no power to make such laws. Under our Constitution, the judiciary is tasked with determining whether laws are constitutional.

“The legislative assemblies are bound by the decision. It is highly contemptuous as it directly undermines the Federal Court decision,” said Surendra, who was one of the lawyers for two Muslim women who successfully challenged the constitutionality of Kelantan’s 16 Shariah criminal offences at the Federal Court.

In Malaysia, there are three organs or branches of government, namely the judiciary, the legislature, and the executive.

“I don’t think in our history has any organ directly challenged the judiciary and stepped over the Constitution in this manner,” he said, noting that there may have been situations in the past when the executive branch of government was unhappy with some court decisions but would then do things differently or amend the law.

But if Kelantan seeks to reinstall the same laws that were struck down as unconstitutional, Surendra said this would amount to a different scenario: “If they reenact the same laws in substance, they are basically saying that they are above the judiciary and Constitution.”