THE Federal Court's decision to nullify 16 out of 18 provisions of the Kelantan's Syariah Criminal Enactment of 2019 has potential implications for other states in Malaysia.
It is a prompt call for the harmonisation of Syariah laws across states to ensure consistency and avoid legal conflicts. This ruling sets a precedent for stricter scrutiny of state-level Syariah laws to ensure they don't overstep into areas reserved for federal jurisdiction.
Other states with similar provisions might face legal challenges. The decision could contribute to ongoing public discussions about the role and interpretation of Syariah law in the Malaysian legal system.
This landmark decision sets a precedent for other states, clarifying the limits of state legislative power in enacting Syariah criminal provisions. States with similar provisions that overlap with federal law might face legal challenges.
The ruling thereby limits the reach of its Syariah criminal code. It could create uncertainty for other states regarding the legality of their Syariah laws.
The case could reignite debate on the balance between federal power and state autonomy over religious matters. This might encourage stricter interpretations of the Federal Constitution's division of power.
States considering expanding their Syariah criminal codes might adopt a more cautious approach after this. The decision reaffirms the boundaries between federal and state legislative powers, potentially hindering efforts by other states to expand their Syariah criminal codes.
The ruling, however, provides greater clarity and consistency in the application of Syariah law across the country. The decision is likely to spark renewed debate about the balance between religious freedom, federalism and individual rights in Malaysia's multireligious society and Islam as the religion of the federation.
While the current decision provides significant guidance, some argue for potential constitutional amendments to further clarify the boundaries between federal and state powers regarding Syariah law.
The proposed amendments can be focused upon by defining more explicitly which areas fall under federal and state jurisdiction in relation to Syhariah law and establishing mechanisms for ensuring greater consistency and uniformity in Syariah laws across different states.
At the same time, it will help strengthen protections for individual rights and ensure that they are not infringed upon by the Syariah laws. It is important to note that any potential amendment would require a complex and delicate political process, considering the diversity of views and sensitivities surrounding this issue.
There are currently no confirmed proposals to amend the Federal Constitution in response to this decision.
However, potential debates might consider clarifying legislative boundaries. More precisely, the division of legislative power between federal and state governments regarding Syariah criminal law.
While the recent Federal Court decision on Kelantan's enactment provides some clarity, the proposed RUU355 (RUU-Rang Undang-Undang, translated as Bill) and discussions beyond it highlight the need for continued efforts to explicitly define these areas.
Among the key areas for consideration:
A. Criminal vs. civil jurisdiction involving Article 8 of the Federal Constitution grants legislative power over Syariah offences and punishments, but these must not contradict existing federal laws. RUU355 aims to expand Syariah jurisdiction specifically for hudud offences, a subset of Islamic criminal law, raising concerns about potential clashes with federal criminal codes.
B. Family law and personal matters, states hold authority over family law within their Syariah jurisdictions. However, issues such as child custody and inheritance can intersect federal civil law and may require clear boundaries, and;
C. Administration and enforcement: Defining who regulates and enforces Syariah laws, including matters of judges' qualifications and disciplinary procedures, would help streamline implementation and ensure consistency.
While RUU355 focuses on hudud offences, a broader, holistic approach may be required to effectively delineate the federal-state divide. This could involve constitutional amendments by revising relevant articles in the Constitution to provide more explicit details on areas of jurisdiction for both federal and state syariah laws.
One of them is to amend List III ( the Concurrent List), Schedule Nine of the Federal Constitution, in order for the State Legislative Assembly to enact laws pertaining to criminal matters including the Syariah Criminal Offences.
In terms of judicial interpretation, the court rulings such as the case in Kelantan can offer further clarification of specific legal challenges. In addition, national dialogue, consensus building, and open discussions involving legal experts, religious scholars and civil society can lead to more inclusive and informed solutions.
On that note, we welcome suggestions and proposals issued by the Special Committee, set up by the government under the advice of the Sultan Selangor, Chairman of the National Council for Islamic Religious Affairs.
Any definition of jurisdiction must ensure compliance with fundamental rights enshrined in the Constitution. Malaysia's multireligious and multiethnic composition necessitates finding solutions that respect different viewpoints.
Achieving a consensus on amendments or broader discussions requires the navigation of political interests and sensitivity. Defining the scope of Syariah laws in relation to federal and state jurisdictions is a dynamic and multifaceted issue.
RUU355 highlights the need for further action, but a comprehensive approach involving legal, judicial and societal efforts is crucial for achieving clarity, consistency and respect for all the interests involved.
Dr Mohamed Azam Mohamed Adil is the Director-General, Institute of Islamic Understanding Malaysia (IKIM) while Mohd Noor Omar is a fellow at IKIM
The views expressed in this article are the authors' own and do not necessarily reflect those of the New Straits Times