PUTRAJAYA (Feb 9): A nine-member Federal Court bench on Friday partially allowed lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter’s challenge to strike out 16 out of 18 Kelantan shariah laws passed by the state legislature in 2019, ruling that it runs contrary to the federal list that stipulates similar offences.
Chief Justice Tun Tengku Maimun Tuan Mat in a majority 8-1 decision, read in Bahasa Malaysia, ruled to strike out the 16 state offences that were listed as unconstitutional.
The majority bench ruled that the Kelantan legislative assembly had acted beyond its jurisdiction in formulating laws for the 16 offences.
However, the majority bench ruled that two state laws under Sections 13 and 30 of the Kelantan state enactment, which govern the control in the propagation of other doctrine or understanding against Islam or breach of peace, and also selling or giving away a child to non-Muslim or morally reprehensible Muslims, to be valid laws.
The bench unanimously also ruled two other Kelantan state laws which Nik Elin and her daughter had dropped from their initial 20 challenge laws to be valid laws. The two laws concerned offences of gambling and the false declaration of someone as Imam Mahdi, or false prophet, as valid laws.
The majority ruled to strike out the Kelantan 2019 enactment in relation to:
- Section 11 (destroying or defiling place of worship)
- Section 14 (sodomy)
- Section 16 (sexual intercourse with a corpse)
- Section 17 (sexual intercourse with non-human)
- Section 31 (sexual harassment)
- Section 36 (possessing false document, giving false evidence information or statement)
- Section 36 (anything intoxicating)
- Section 39 (reducing scale, measurement and weight)
- Section 40 (executing transactions contrary to hukum syarak)
- Section 41 (executing transactions via usury)
- Section 42 (abuse of halal label and connotation)
- Section 43 (offering vice services)
- Section 44 (preparatory act of offering or providing vice services)
- Section 45 (preparator act of vice)
- Section 47 (act of incest), and
- Section 48 (pimping).
Decision does not undermine Islam
Tengku Maimun said the majority decision has nothing to do with the position of Islam or the Shariah Court in the country.
“Whether Islam or the Shariah Court should be protected or otherwise is not an issue in this petition,” she added.
The issue, she said, is whether the Kelantan state legislative assembly was competent in formulating the laws for the Shariah Court, and whether the civil courts will allow the challenge.
“The civil courts cannot be said to go against Allah, as the law that is challenged is not decreed by Allah but by the state legislative assembly. If the challenge is viewed this way, there is no issue of the civil court being viewed as not protecting Islam or not maintaining the sanctity of the shariah courts,” she added.
Tengku Maimun said lawyer Yusfarizal Yusoff's claim that the Shariah Court or Islamic law in Malaysia would be buried was unfounded as they would always be protected by the Federal Constitution.
“Let me emphasise here again that what is challenged in the applicants’ (Nik Elin and her daughter’s) petition is not related to the position of shariah law in Malaysia. What is argued is the Kelantan legislative assembly had acted beyond its powers or jurisdiction according to the state lists in the Federal Constitution,” she said.
In arriving at the majority decision, Tengku Maimun quoted former Lord President Tun Mohamed Suffian Mohamed Hashim, who said the power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and "they cannot make any law they please", and added that this demarcation is in Schedule Nine of the Federal Constitution.
“In other words, the power to formulate federal and state laws is stated in the Federal Constitution, and Parliament nor the state legislative assembly cannot formulate laws beyond this list.
“In considering the petition whether it is out of jurisdiction or otherwise, there is a test of pith and substance employed. If the substance formulated by the legislative assembly is in the federal list, then the state legislative assembly does not have the powers to do so. Looking at the submissions by everyone, this court allows Nik Elin and her daughter’s application to strike out the 16 sections,” she said.
The seven who were with her in the majority landmark decision were: Court of Appeal President Tan Sri Abang Iskandar Abang Hashim; Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah; and Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais.
Dissenting judge questions locus standi
However, Chief Judge of Sabah and Sarawak (CJSS) Tan Sri Abdul Rahman Sebli, the sole dissenting judge of the nine-member bench, ruled Nik Elin and her daughter were not competent to challenge to strike out the laws.
He classified them as not having locus standi (legal standing) to file the petition, and said the application is a mischief, adding that they acted as a “phantom busybody”.
“They failed to pass the hurdle in which part of their constitutional rights had been violated to make the challenge and hence, leave (permission) should not be granted.
“The court should not grant mischief and busybodies a say that the impugned provisions of the law is a violation as it discriminates between Muslims and non-Muslims. There is no basis to say that their constitutional rights had been compromised,” Abdul Rahman said.
Abdul Rahman said the federal government or the Attorney General's Chambers should be the proper party to initiate the move, and not Nik Elin.
The CJSS said with not having the standing, it was wrong for Nik Elin and her daughter to institute their challenge and further noted the apex court had erred in granting leave in the first place to hear the merits.
“The liberalisation of the locus standi rule does not allow a busybody or a person who has no legal right to participate in the challenge. Here the person is a phantom busybody, and this is an abuse of the court process,” Abdul Rahman added.