Political parties should refrain from judicial influence or public incitement in Kelantan case — lawyers

TheEdge Tue, Nov 21, 2023 12:13pm - 1 week View Original

KUALA LUMPUR (Nov 21): Political parties should not attempt to exert influence on the judiciary or incite the public against a move by a lawyer and her daughter in challenging 18 Kelantan shariah laws passed in 2019 as being in contravention of powers held by the federal government to enact such legislation, senior lawyers said on Tuesday, adding their voice to a warning by the country's top judge on Monday (Nov 20) over such comments or actions.

Senior lawyer Datuk Seri Jahaberdeen Mohd Yunus said the legal action by Nik Elin Zurina Nik Abdul Rashid and her daughter is allowed under the law, adding that a warning by Chief Justice Tun Tengku Maimun Tuan Mat on Monday that parties should refrain themselves from making comments on ongoing cases was timely.

Jahaberdeen observed that the application filed by the plaintiffs was to ensure that the rule of law is adhered to, and that the Constitution is held supreme. He said that the action was to be respected and even commended, as it did not benefit the plaintiffs personally.

“It is important that law-making bodies themselves, for example the state legislatures, adhere to the rule of law and constitutionalism. As to whether Nik Elin and her daughter’s concerns are valid in law, let the Federal Court decide,” he said.

“It is worrisome when politics, especially political parties, appear to attempt to exert influence on the judiciary, or incite the public against a legal action allowed under the law. It is unethical if lawyers, whatever their motives, misrepresent the legal action, and [it is] shameful if they misrepresent it as a challenge to Islam or the institution of shariah,” Jahaberdeen said.

KL Bar committee chairman Alvin Oh Seong Yew said that the KL Bar is in agreement with the Federal Court’s observations that parties ought to refrain from discussing or making misleading statements on pending cases like Nik Elin’s case in a public forum, especially when sensitive matters such as race and religion are involved.

“It is imperative that the rule of law and due process is upheld, such that legal and constitutional disputes are resolved by a court of law and not by the court of public opinion,” he said.

At the start of the case on Monday, Nik Elin had alleged that one of the lawyers representing one of the observers had made comments about the matter, prompting Tengku Maimun to warn the parties to refrain themselves from making such comments on ongoing cases, stressing that the hearing was not about undermining the position of Islam or the shariah courts in the country.

“The issue arising out of the petition is simply about the competency of the Kelantan State Legislative Assembly to enact the impugned provisions,” she said.

Nik Elin only questioning Kelantan jurisdictional competency

Former deputy law minister Mohamed Hanipa Maidin also explained that Nik Elin was merely questioning the jurisdictional competency of the Kelantan state legislature in criminalising certain shariah offences, as she is of the view that the jurisdiction is only vested in Parliament.

“The Federal Constitution has clearly demarcated the legislative boundaries of Parliament and state legislature in their law making enterprises.

“Needless to say, our apex law does not bar Nik Elin or anyone for that matter from making such an application. Unfortunately, some irresponsible elements have been trying to hammer home this uncalled-for-remarks that "there is an attempt to wipe out the Quran and the Hadith".

“I am of the view that Nik Elin’s suit would be a matter of public interest, especially in drawing out clear constitutional guidelines of legislative competency on matters entailing grey areas,” Hanipa said.

Hanipa said Nik Elin was of the  view that the sole power to legislate some criminal offences is only given to Parliament, as criminal matters fall squarely under the federal list.

“However, some have different views. Those 18 offences are considered tazir offences, thus they are part of criminal offences under Islamic criminal law. Hence, they fall under the state list as in a pith, and [as the] substance they deal with [is] Islam.

“Ergo, the state legislature is duly conferred with such a jurisdictional competency. While it is to be expected for some political parties to gain some political mileage out of this issue, their careless action in making a mountain out of a molehill from this inflammatory issue is, however, deeply regretted,” he said.

Read also:
CJ warns lawyers against incendiary comments in Kelantan shariah law dispute

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