KUALA LUMPUR: False and misinformed narratives surrounding the Federal Court's ruling on 16 provisions of Kelantan's Syariah Criminal Enactment have been malicious attempts to discredit the courts and petitioner.
Additionally, constitutional law expert Emeritus Prof Datuk Shad Saleem Faruqi, who appeared on the New Straits Times' Beyond the Headlines podcast, said that constitutional literacy seems to be lacking, especially among those who have been misled by misinformation.
"It is partly a lack of legal knowledge, a lack of constitutional literacy. But there is also a malicious attempt to discredit the courts and the petitioner.
"(The narrative is that) because the courts have said Kelantan cannot punish these offences (pertaining to the 16 provisions found unconstitutional under state syariah law), therefore the court is legitimising these actions, saying these actions can be committed by everyone.
"That is malicious," he said, adding that this has been misconstrued, alluding to the successful constitutional challenge on 16 of 18 provisions under the Kelantan Syariah Enactment brought forth by Nik Elin Zurina Abdul Rashid and her daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman in the nation's top court.
"The court is not saying that at all. What the court is saying is this is already an offence under federal law."
Shad pointed out the offences in question are already offences under federal law, and therefore its jurisdiction lies with the federal parliament, not the syariah courts. Moreover, he highlighted the disparities between penalties under civil law versus syariah law for certain offences, indicating that federal laws often impose harsher penalties.
"The jurisdiction is that of the federal parliament. The venue must be the civil courts, not the syariah courts.
"And may I just add, anyone who says that declaring the Kelantan syariah enactment unconstitutional, let us say on sodomy… (they say this) means sodomy is being permitted by the court; that's very funny… because under Section 377A of the Penal Code, it's 20 years jail and whipping, right? Whereas under the state law, the punishment is actually lesser. So, the offence is very much in place and is subject to prosecution. The wrong is still a wrong.
"It has not been legitimised. But the whole issue is who had the power to pass this law?," Shad added.
He further raised concerns about the potential for inequality and double jeopardy if individuals were prosecuted under different legal systems for the same offence. He emphasised the need for clarity and understanding in navigating the complexities of Malaysia's legal framework.
"(When) you have two separate systems of laws and two separate venues… that's going to create problems.
"First of all, equality before the law, right? (A) Muslim would be prosecuted in the syariah courts for an offence. (But) for the same offence, a non-Muslim would be prosecuted in a civil court for a much greater penalty.
"There may even be problems of double criminality which is forbidden by Article 7, clause 2 (of the Federal Constitution). Double jeopardy. A person may have been (then) prosecuted
by using a different word, a different description, but essential facts are the same. Then he gets prosecuted (for the same crime).
"The law says if someone has been acquitted or convicted, then he cannot be prosecuted, he cannot be tried again."