This article first appeared in The Edge Malaysia Weekly on December 30, 2024 - January 12, 2025
IN a major landmark Federal Court decision in February, a nine-member bench of the apex court led by the nation’s top judge, Chief Justice Tun Tengku Maimun Tuan Mat, partially allowed lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter’s challenge to strike out 16 of 18 Kelantan shariah laws passed by the state legislature in 2019.
Even so, the Kelantan state government has indicated its intent to continue to pursue the matter despite the apex court’s 8-1 majority decision, where it had ruled that 16 of the laws ran contrary to federal laws that govern the same offences.
The eight judges in the country’s highest court ruled that the Kelantan state legislative assembly had acted beyond its jurisdiction in formulating laws for the 16 offences and that the laws were unconstitutional.
The majority ruled to strike out the Kelantan 2019 enactments in relation to:
1. Section 11 (destroying or defiling place of worship)
2. Section 14 (sodomy)
3. Section 16 (sexual intercourse with a corpse)
4. Section 17 (sexual intercourse with non-human)
5. Section 31 (sexual harassment)
6. Section 36 (possessing false document, giving false evidence information or statement)
7. Section 36 (anything intoxicating)
8. Section 39 (reducing scale, measurement and weight)
9. Section 40 (executing transactions contrary to hukum syarak)
10. Section 41 (executing transactions via usury)
11. Section 42 (abuse of halal label and connotation)
12. Section 43 (offering vice services)
13. Section 44 (preparatory act of offering or providing vice services)
14. Section 45 (preparatory act of vice)
15. Section 47 (act of incest), and
16. Section 48 (pimping).
The lawyer and her daughter, however, failed to strike out two offences as the majority bench ruled that the two state laws under Sections 13 and 30 of the Kelantan state enactment are valid.
Section 13 refers to selling or giving away a child to a non-Muslim or a morally reprehensible Muslim, while Section 30 involves utterance or usage of words that could break the peace.
The duo had initially challenged 20 laws but had dropped two. However, the bench had addressed these laws and found them to be valid under the Kelantan legislative assembly. The two laws pertain to offences of gambling and the false declaration of someone as Imam Mahdi, or false prophet.
Tengku Maimun stressed that the decision does not undermine 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 observed, noting that the issue in question was to determine if the Kelantan legislative assembly had acted beyond its powers or jurisdiction under the Federal Constitution.
“Let me emphasise here again that what is challenged in the applicants’ petition is not related to the position of shariah law in Malaysia. What is argued is (that) 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”. She added that this demarcation could be found 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 or the state legislative assembly cannot formulate laws beyond this list.
Other judges 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 labels mother and daughter “phantom busybody”
The sole dissenting judge among the nine was Chief Judge of Sabah and Sarawak (CJSS) Tan Sri Abdul Rahman Sebli who ruled that Nik Elin and her daughter were not competent and did not have “locus standi” or legal standing to bring the action to court.
He also described their application as a mischief and the duo’s action 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.
He surmised that the federal government or the Attorney General’s Chambers should be the proper party to initiate the move.
“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.
Since then, the Kelantan government is planning a draft to reinstate the 16 annulled provisions including any related provisions.
On March 6, the Kelantan state legislative assembly approved a motion to re-legislate the 16 offences in the Syariah Criminal Code Enactment (I) Kelantan 2019.
The state is expected to table amendments to the Syariah Criminal Code (I) Enactment 2019 in the state legislative assembly in 2025.
Deputy Menteri Besar Datuk Dr Mohamed Fadzli Hassan said the amendments would be tabled after the Main Committee on Amendments to the Syariah Criminal Code (I) 2019, which comprises 12 members, discusses the matter.
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