“The federal constitution and federal laws is no impediment for the state to introduce enactments on the creation and punishment of offences by Muslims on Islamic penal code,” he said.
He said the legal framework had been altered following a constitutional amendment to Article 121 (1A) in 1988.
The lawyer, who has appeared for religious authorities over the conflict of laws between shariah and civil courts, said under the amendment, the jurisdiction over religious courts was vested with state legislatures.
Haniff said Article 121 (1A) must also be read with Article 74, which states that matters in the federal list came under the central government while the state list came under state governments.
“In my opinion, the power to enact shariah criminal laws is vested with state legislatures, including the establishment of shariah courts and setting the punishment limit,” he told FMT.
Haniff said this in response to the deferment of Marang MP Abdul Hadi Awang’s private member’s bill to empower the shariah courts to mete out sentences up to 30 years’ jail, RM100,000 fine, and 100 strokes of the cane.
Haniff said since shariah courts were created by the state legislature, then it was also for the state to empower their respective religious courts to mete out the necessary punishments.
“That is why the amendment to Shariah Courts (Criminal Jurisdiction) Act 1965 to enhance punishment is an irrelevant bill,” he said.
The lawyer said before 1988, all decisions of the shariah courts were not legitimately recognised by the constitution and required the High Courts to carry out supervisory function.
Initially, the religious courts were empowered to impose up to six months’ jail and a maximum RM1,000 fine.
In 1989, shariah criminal punishment was capped at three years’ prison term, RM5,000 fine, and six strokes of the cane, punishment which Hadi now intends to increase.
“Because the 1988 amendment was so sudden, the legal fraternity did not address the constitutionality of the issue,” he said.
Haniff said the attorney-general must carry out his duty to advice Putrajaya on the constitutional position of the bill.
“The current polemic surrounding the bill is unnecessary and overly-sensationalised for political reasons,” he said.
He said any Muslim in Kelantan or the federal government had the right to take the Kelantan legislature to the Federal Court to challenge its competency to enact laws and prescribe punishments within the Islamic jurisprudence.