PUTRAJAYA (Aug 17): A nine-member bench of Federal Court judges on Thursday (Aug 17) heard a Kelantan-born lawyer and her daughter's challenge over the constitutionality of the Kelantan legislative assembly to enact a law on 20 shariah criminal offences, which was gazetted in 2021. The offences are also in the federal list namely the Penal Code.

Lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman, who hail from Kelantan and have relatives there, had last year obtained the Federal Court’s permission to proceed with the constitutional challenge under the Article 4(4) route.

Article 4(4) stipulates that any challenge to a law to be declared as invalid can only be done if a Federal Court judge grants leave or permission.

It is rare that a nine-member bench of the apex court hears cases related to constitutional matters.

In Thursday’s proceedings, the bench was led by Chief Justice Tun Tengku Maimun Tuan Mat and consisted the top three members of the judiciary — Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah and Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli 

The rest of the bench comprised Federal Court judges Datuk Nalini Pathmanathan, Datuk Mary Lim, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais.

The two women’s challenge ultimately argues that the Kelantan legislative assembly did not have the powers to create these 20 shariah provisions in a state law, as it is the federal government instead which holds the powers under the Federal Constitution to make laws on such crimes.

The 20 provisions of Kelantan’s Shariah Criminal Code (I) Enactment 2019 cover shariah offences of false claim (Section 5), destroying or defiling place of worship (Section 11), selling or giving away child to non-Muslim or morally reprehensible Muslims (Section 13), sodomy (Section 14), sexual intercourse with corpse (Section 16).

Other provisions are sexual intercourse with non-human (Section 17), words capable of breaking place (Section 30), sexual harassment (Section 31), possessing false document, giving false evidence, information or statement (Section 34), consuming anything intoxicating (Section 36), gambling (Section 37), reducing scale, measurement and weight (Section 39).

The duo are also challenging the executing transactions contrary to hukum syarak (Section 40), executing transactions via usury (Section 41), abuse of halal label and connotation (Section 42) offering or providing vice services (Section 43), preparatory act of offering or providing vice services (Section 44), preparator act of vice (Section 45), act of incest (Section 47) and middleman acting to solicit vice activities (Section 48).

The two women were represented by Datuk Malik Imtiaz Sarwar and Surendra Ananth.

Malik Imtiaz said the 20 provisions in the state law show duplicity of criminal offences as some of these offences are already stipulated in the Penal Code, while legislation concerning falsehood is covered under Section 124I of the Penal Code and Section 233 of the Communication and Multimedia Act 1998.

“Nowhere is it stated by the Kelantan government that the Federation does not have powers to enact the law,” he said.

He added that his clients are not challenging the precepts of Islam, but are concerned that they, as Malaysian Muslims, could be subject to two sets of laws in Kelantan.

Malik Imtiaz also said there is a real risk that the Kelantan government may invoke its investigative powers against the duo in relation to the impugned provisions.

He cited the decision on a case of Iki Putra Mubarrak vs the Selangor government, which saw the apex court striking out a Selangor state law's provision criminalising homosexuality which the accused was initially charged with, on the grounds that there was already a federal law in conflict with the state law, under which he was charged.

During Thursday's hearing, Tengku Maimun, in not allowing the Kelantan state Islamic department to intervene, reiterated that the court agreed with Malik Imtiaz that the case has nothing to do with Islamic doctrine or precepts, but the words stipulated in the Federal Constitution.

“The petitioner (Nik Elin) herself did not disagree on the Islamic religion,” she said in setting the record straight.

Although the bench unanimously did not allow the Kelantan Islamic department to intervene, it allowed the Terengganu Islamic and Malay Affairs (Maidam) council to submit.

Counsel Datuk Kamaruzaman Muhamad Arif, who appeared for the Kelantan state, along with Arham Rahimy Hariri and Kelantan legal adviser Datuk Idham Abdul Ghani, said shariah law and secular law can co-exist.

He added that they want a revisit of the Iki Putra case as they felt the Federal Court had wrongly decided on the matter.

Kamaruzaman also argued that historically, state governments were allowed to enact shariah criminal laws on their own and these laws should be allowed as they were passed by the state legislature.

Meanwhile, Yusfarizal Yusoff of Maidam told the court that federal laws concerns public law, but Islamic shariah laws concern personal law, which the state can enact.

“We cannot ask the Parliament to enact personal law on Muslims; for example a Muslim caught drinking alcohol, as this is subject to personal law. We cannot defy the fact that Muslims can be subjected to two laws namely civil and shariah law and they can be enforced harmoniously,” he added.

Yusfarizal said the prosecution can be carried out under any one law.

He noted that Nik Elin's challenge on the constitutionality of the 20 shariah provisions in the Kelantan legislature is premature as she has not been aggrieved by any of the provisions.

Meanwhile, Tengku Maimun wants other parties who have been allowed to intervene to submit on the issue at a later date.

Kelantan Islamic and Malay Affairs Department, Sisters in Islam, Federal Territory Islamic Council, FT Syarie Lawyers Association, the Malaysian Bar, the Malaysia Syarie Lawyers Association, Muslim Lawyers Association, Perlis Islamic council, Sabah Islamic Council, Negeri Sembilan Islamic Council, Perak Islamic council and Malacca Islamic Council are some of the interveners.