Amidst the backdrop of a legal tussle challenging the Kelantan government's enactment of shariah criminal laws, the focal point, according to constitutional law luminary Professor Emeritus Datuk Shad Saleem Faruqi, isn't about condoning transgressions against Islamic principles. Rather, it revolves around delineating the precise jurisdiction, be it federal or state, authorized to legislate on offenses.
Highlighting the constitutional underpinning, Shad Saleem emphasized the division of legislative power between the federal Parliament and state assemblies. He stressed the crucial caveat that neither entity should overstep into the other's domain. Any such encroachment might trigger judicial scrutiny, as it challenges the fundamental delineation of powers.
In the midst of this legal melee, a lawsuit targets the Kelantan Shariah Criminal Code, seeking nullification of specific provisions deemed beyond the state assembly's purview. Shad Saleem discerned the crux of the issue lying not within the shariah courts or their enforcing agencies but rather the state assembly's penchant for overstepping its designated powers.
The scholar further elucidated that while the Shariah courts derive their authority from state law, the crux of this power trickles down from the federal constitution itself. He clarified that the authority to prosecute federal offences, as stipulated in the Federal List, squarely rests with the police and the Attorney-General’s Chambers, not with state assemblies or shariah authorities.
The impending legal confrontation has been coloured by various perceptions, with some framing it as an affront to Islam. PAS, in particular, has projected it as an attack on the faith and plans to stage a demonstration, amplifying the controversy surrounding the case championed by lawyer Nik Elin.
Shad Saleem articulated that Nik Elin's pursuit isn't about altering Islamic tenets but rather about the proper trial venue. He elucidated this by citing the federal constitution's explicit mandates, specifying the jurisdictional territories for criminal trials. Drawing parallels, he highlighted the separation of civil and shariah courts, especially concerning offenses against Islamic principles, as articulated in the constitutional Lists.
Underlining the significance of this legal clash, Shad Saleem underscored that the court's verdict could herald clarity regarding the division of powers between federal and state governments concerning Islamic offences. Moreover, this case's magnitude surpasses prior challenges due to its breadth, contesting 20 provisions that significantly overlap with federal legislation.
Shad Saleem distinguished between shariah criminal laws and personal matters, clarifying that the state assembly and shariah courts wield authority mainly over Muslim personal law, particularly in family-related issues.
Emphasizing adherence to the constitution, Shad Saleem cautioned against overreach, citing instances where Kelantan's legislature potentially encroached upon federal laws, inviting constitutional scrutiny.
Nik Elin's case argued before a panel of Federal Court judges, was recognized for its focus on interpreting the federal constitution rather than challenging Islamic precepts, a distinction crucial in this legal saga.
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