THE Kuala Lumpur High Court will decide on February 19 whether to strike out an originating summons by former Umno MP Tawfik Ismail, who is seeking to declare the tabling of a bill to amend the Shariah Courts (Criminal Jurisdiction) Act 1965, or RUU355, as unconstitutional.

The date falls the fourth day of Chinese New Year.

Justice Kamaludin Md Said fixed the date after a private hearing in chambers today.

Tawfik had applied to dismiss an application by Dewan Rakyat Speaker Pandikar Amin Mulia to strike out the former’s earlier effort to get the High Court to stop the parliamentary debate on PAS president Abdul Hadi Awang’s shariah bill.

In a legal notice dated December 8, the former Sungai Benut MP repeated his earlier assertions that under provisions in the Constitution, all legal matters pertaining to Islam must first obtain the approval of the Malay rulers of the state before they can be debated and approved in Dewan Rakyat.

Rosli Dahlan, Tawfik’s lead counsel, told a hearing in chambers before Kamaludin today that the Speaker and parliamentary proceedings should not hide behind parliamentary privileges and are not immune to court proceedings.

“My answer (written rebuttal to Pandikar’s strike out application) is that this is not a ‘parliamentary’ democracy. This is a constitutional one,” Rosli told reporters after the decision date was fixed.

“In a constitutional democracy, the three branches… executive, legislative and judiciary, are subject to the constitutional provisions regarding their powers and scope,” he added.

He said the court has jurisdiction to intervene if the Speaker acts against constitutional provisions.

“In this case, there’s no denial they did not go and obtain the consent of the ruler. There’s no denial that Order 49 of the Standing Orders was not followed.”

In March, Tawfik filed a suit in the High Court seeking a declaration on the constitutionality of the amendments proposed by Hadi within RUU355 without the approval of the Conference of Rulers.

He also sent a legal notice to Pandikar and Dewan Rakyat Secretary Roosme Hamzah after filing the suit to prevent passage of the bill with the matter in court.

In October, Pandikar and Roosme filed an application with the court to strike out Tawfik’s suit. The High Court has fixed January 11 to hear the application.

In a letter to the High Court dated December 7, Tawfik’s lawyers appealed for his earlier suit to be heard alongside the application by Pandikar and Roosme next month.

In his written submission today, Rosli highlighted that Malaysia “is unlike the UK where the parliament is supreme.”

“It is wrong to think that the Parliament of Malaysia can do whatever it likes and in any way it likes and courts can do nothing because of parliamentary privileges.

Rosli also noted the Conference of Rulers’ role as a check, in addition to the federal constitution’s Articles 76(2) and 38(4) where the rulers’ consultation and consent are required for laws related to Islam or those affecting their position and privileges.

“Parliamentary privileges cannot displace the law of the constitution,” Rosli argued.

In his written submission, senior federal counsel Shamsul Bolhassan said Tawfik has no jurisdiction take Pandikar to court, citing the federal constitution’s Article 62(1) – which states that parliament shall regulate its own procedure subject to the constitution and federal laws and Article 63 – which states the validity of any parliamentary proceedings shall not be questioned in any court.

Shamsul said Tawfik can only challenge the bill after it is passed by parliament and becomes law.

Hadi’s private member’s bill to enhance shariah penalties, also known as RUU355, was first tabled in parliament on May 26 last year and remains on the Order Paper for the next Dewan Rakyat sitting.

Hadi’s bill seeks to impose harsher penalties under the Shariah Courts (Criminal Jurisdiction) Act. Currently, shariah criminal punishments are capped at three years for prison terms, RM5,000 for fines and six strokes of the cane.

Hadi wants to state Islamic authorities to be able to mete out punishments to a maximum of 30 years, RM100,000 and 100 strokes. – January 11, 2018.