Where does the periphery of constitutional litigation lie?
Nik Elin case lacks merit which should not be hearing in the first place, and the court must accept the remedial limits.
One key point made by CJ Tengku Maimun in her speech at the 24th Commonwealth Conference, early this month, is that in Malaysia, the Federal Constitution is regarded as supreme, not Parliament. Last year, Maimun delivered the majority opinion, 8-1, in the case of Nik Elin v. Kerajaan Negeri Kelantan, opined the Kelantan Syariah Criminal Code “invalid, and hence null and void.” First, I agree with CJSS Abdul Selbi that this case lacks locus standi. Second, I question Maimun’s usage of terms such as “invalid,” “null,” and “void.”
It is important for the public to understand that any belief suggesting that the federal court can “invalid,” “null,” or “void” statutes due to unconstitutionality, misrepresents the power of judicial review in constitutional litigation. Judicial review has its own limitations. It permits the court to decline enforcement of statutes only while the court's injunction remains in effect.
Just the opposite, the preliminary injunction does not protect those who violate the law from prosecution or other civil penalties, it also does not legalize behaviour that the legislation has prohibited and does not delay the effective date of the statute. Even “permanent” injunction can be vacated on appeal, and if the injunction survives appellate review, it is always possible for the future federal court changes the interpretation of the constitution, potentially leading to the enforcement of the same statute or a similar one.
Simply put, a judicial pronouncement of unconstitutionality is temporary. The belief that a court can struck down any statute is a fallacy. The judiciary has no power to amend, erase, or delay the effective date of a statute. It has no authority to bind future courts to its constitutional interpretations. Moreover, precedent is not a veto. Future federal court can overrule, ignore, or narrow the precedents they do not support, and I believe, it is foreseeable, the constitutional jurisprudence is likely to evolve significantly.
Maimun certainly recognizes the court's rhetoric does not align together with reality, that the judiciary cannot repeal or instruct the legislature to repeal the duly enacted statutes. This case lacks merit which should not be hearing, in the first place and the court must accept the remedial limits. The way Maimun authored the majority opinion, using inaccurate terminology, can mislead the public's understanding of constitutional litigation and the court's decision itself does not change the statutes in any way.