PETALING JAYA: PAS should explain to its followers and Muslims who are confused about the recent Federal Court's decision, which ruled that 16 out of 18 provisions of the Kelantan syariah criminal law were unconstitutional, says former religious affairs minister Senator Datuk Seri Dr Mujahid Yusof Rawa.
Rather than using the apex court's ruling as political fodder, it would be better for PAS to be honest, the Parti Amanah Negara deputy president said.
"PAS MPs and assemblymen should take the role of explaining how the legislative process works and what powers are allocated by the Federal Constitution, which all MPs and assemblymen promised to defend in their oath of allegiance.
"PAS must agree that the decision to strike out 16 provisions in the Kelantan Syariah Criminal Enactment (EJSK) 2019 symbolises a weakness of the Kelantan legislative body or the state assembly which, without careful consideration, had approved some provisions in the EJSK that clearly exceeded its legal jurisdiction as noted in the Chief Justice's judgment," Mujahid said in a statement on Saturday (Feb 10).
He said that PAS should embrace the spirit of the decision by improving the syariah criminal law-making process more carefully and accept the advice by respecting the powers vested in the state assembly.
Mujahid said PAS had misled its followers and some Muslims by saying that the Syariah Court was threatened and challenged.
"This can cause enmity that affects the harmony of the country as well as disrespecting the Federal Constitution," he said.
Mujahid added that the syariah criminal law is similar to the civil criminal law from the viewpoint that it is a Takzir, which are laws deemed appropriate by the state to protect the security of the people and the state.
The difference is that the source of authority for syariah criminal laws is made and enacted by the respective state assemblies, with the exception of the Federal Territories, Mujahid explained.
"The Takzir enacted by the Kelantan state assembly was cancelled because it exceeded the limits of authority set by the Federal Constitution by enacting laws that conflicted with provisions available at the federal level.
"It means that the criminal offence committed will still be punished in federal law.
"So how can it be said that this decision is supposed to eliminate Islamic law? Takzir can be revoked if the same law already exists in the Federation to avoid two punishments for the same crime imposed on the offender in line with the principle of justice," he said.
He added that the annulment of 16 provisions in the EJSK resulted from Kelantan PAS assemblymen's failure to examine all 18 disputed provisions.
Mujahid said the Kelantanese should question which assemblymen had approved the EJSK, which Kelantan Speaker had presided over the session and which legal advisers had been consulted.
"The Federal Court's decision on Feb 9 was a significant blow to the Kelantan state government and showed how weak it is in drafting the laws.
"Other states should draw example from this decision so that there will not be future clashes of jurisdiction in the future," he said.
On Friday (Feb 9), Chief Justice Tengku Maimun Tuan Mat, who chaired a panel of nine judges, delivered the Federal Court's decision, which ruled 16 provisions of the Kelantan syariah criminal law were unconstitutional.
In an 8-1 majority decision, the apex court allowed the application by a mother and daughter duo who challenged 18 provisions under the Kelantan Syariah Criminal Code Enactment 2019.
However, the Federal Court ruled that Section 13 (selling or giving away a child to non-Muslims or morally reprehensible Muslims) and Section 30 (words capable of breaking peace) were constitutional and valid as the subject matter in the provision was within the State List, hence they were within the ambit of the state legal authority.