KUALA LUMPUR: Fundamental human rights guaranteed under the Federal Constitution must be preserved when state assemblies enact laws on offences that violate Islamic precepts such as cross dressing, as ruled by syariah law.
On the New Straits Times' Beyond the Headlines podcast, constitutional lawyer Surendra Ananth hinted at a two-fold aspect of legal analysis when it comes to such matters.
"So, when we talk about laws in that sense, the overlap between the state and federal jurisdiction can come in two scenarios.
"One is in the case where they don't have the power to make the law and that applies to parliament and the state assemblies.
"Or in the second scenario, they have the power, but they violated some other constitutional provision.
Surendra cited a past case involving a challenge against the Negri Semblian Syariah Criminal Enactment when three Muslim men were charged for crossdressing under Section 66 of the state's Syariah Criminal Offence Enactment 1992 in 2012.
The defendants' lawyers had petitioned in the civil High Court for a declaration that Section 66 was void on the grounds that it contravened various provisions of the Federal Constitution.
On Nov 7, 2014, the Court of Appeal held that Section 66 of the 1992 Enactment is null and void because it is contrary to the Federal Constitution.
However, the following year, the Federal Court then reversed the Court of Appeal's decision on procedural grounds. The Court found that the three men should have obtained judicial permission of a Federal Court judge when they commenced their constitutional challenge.
Further referencing the challenge of the Negri Sembilan crossdressing offence, he added that there's the issue of competency, wherein that if crossdressing is considered a violation of Islamic precepts, it falls within the jurisdiction of state assemblies to regulate it as an Islamic offence.
"So like that famous case in Negri Sembilan… the crossdressing case, for example. That's an example of the second scenario where the state had the power but it violated certain fundamental rights.
""And therefore it's within the competency of the state assembly to make that Islamic offence or criminal law.
But, Surendra pointed out, that a constitutional challenge like that of Nik Elin's would be less effective in this case as it's not an issue of competency– the basis of her recent constitutional challenge of the 18 provisions under the Kelantan Syariah Enactment.
"Crossdressing is wrong and goes against the precepts of Islam. So, in regard to competency, it cannot be challenged. It's a competent law (enacted by the Negri Semblian state assembly). So a 'Nik Elin' type challenge won't work (in this case) because it is within the competency (of the legislators)," he said.
Last Friday (Feb 9), the Federal Court ruled that 16 out of the 18 provisions under the Kelantan syariah criminal enactment are unconstitutional after a challenge initiated by Nik Elin Zurina Abdul Rashid and her daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman.
The provisions are Sections 11, 14, 16, 17, 31, 34, 36, 39, 40, 41, 42, 43, 44, 45, 47 and 48.
Chief Justice Tun Tengku Maimun Tuan Mat, who led the nine-member bench, delivered the judgment.
Nik Elin and Tengku Yasmin made the legal challenge on grounds that the provisions were invalid due to the Kelantan State Legal Authority having no power to enact the law.
The only two provisions that remain status quo (constitutional) are selling or giving away a child to non-Muslims or morally reprehensible Muslims (Section 13), and words capable of breaking peace (Section 30).