RECENT Federal Court ruling in the case of Iki Putra Mubarrak vs the Selangor State Government and the Selangor Islamic Religious Council [2020] by a panel of 9 judges comprising, among all the Chief Justice  of Malaya has raised many questions and mixed reactions among the community.

Technically, the case about the State Legislative power in making it a criminal law under the Islamic Act pertaining to matters that have been already been discussed or enacted by the Parliament. In a more specific context, what is the scope of the Exemption Clause which is Item 1, List II, Ninth Schedule and the Federal Constitution (State List).

Based on these specific questions, the Federal Court basically ruled that Section 28 of the Selangor Syariah Criminal Enactment (1995) is a provision of law made illegally by the Selangor State Legislative Assembly (DUN Selangor) because it is contrary to the Federal Constitution, and thus is CANCELED.

In this case, the offenses under Section 28 of the Enactment 1995 at the Selangor state level already exists and is provided at the federal level under Sections 377 and 377A of the Penal Code. On that basis, the Selangor DUN does not have the authority to formulate the S28. In fact, the judgment by Chief Justice of Malaya, the scope of Shariah offenses which are under the jurisdiction of the DUN is subject only to offenses under the aspects of faith, religious and moral purity.

So, there are some big questions that need to be refined because all of them will greatly influence and determine the fate and position of Shariah criminal law after this.

First , what exactly is the context of Shariah criminal offenses that can be enacted by the DUN?

Although there is a simple definition in the judgment as well as in the Federal Constitution, it still opens up a lot of rooms for great and varied interpretation. More importantly, the context of Islamic offenses and crimes are not only subject to 3 matters only and most of them are interrelated and cross-categories.

Second , does this mean that all provisions of the Syariah Enactment in all states will need to be reviewed to ensure that the criminal offenses provided for under those enactments are harmonious and not within the scope/jurisdiction of Parliament?

Third , what will happen to Shariah criminal offenses that are under the jurisdiction of Parliament or the Federal List as we do not have provisions under the Federal law? Since the DUN cannot enact a a law or make provisions that can punish the matter, does this mean that the Shariah criminal offenses can continue to be treated independently?

In depth, it is not uncommon to worry that this decision will raise more confusions over the definition of criminal law and Sharia criminal law.

Other matters are included in the Exemption Clause and the various implications involved the harmony of the Syariah Court and the Civil Court as well as the position of the State Enactment and the Federal Constitution.

DATO SERI UTAMA MOHAMAD HASAN

UMNO Deputy President