KUALA LUMPUR – The Federal Court in Putrajaya will deliver its verdict today on a constitutional challenge brought by two Muslim women over the legality of 18 provisions in Kelantan’s shariah criminal laws.
Dubbed the ‘Nik Elin case’, the apex court will decide whether lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Abdul Rahman, are correct in claiming that the Kelantan assembly did not have the power to enact laws on the 18 offences.
Their contention stems from the fact that there are already federal laws covering the same offences.
The mother and daughter are seeking a declaration from the Federal Court to nullify these provisions as they are similar to existing provisions under the Federal List and Penal Code offences.
The 18 provisions they are challenging are under the Kelantan Shariah Criminal Code (1) Enactment 2019, which lists more than 50 offences and was gazetted in December 2020.
The 18 provisions being challenged cover the following offences: destroying or defiling a place of worship; selling or giving away a child to non-Muslims or morally reprehensible Muslims; sodomy; sexual intercourse with a corpse; sexual intercourse with a non-human; words capable of breaking peace; sexual harassment; possessing false documents and giving false evidence; intoxication; reducing scales, measurements and weights; transactions that are contrary to shariah; abuse of halal label; offences covering provision or offer of vice services; and incest.
Their original challenge listed 20 provisions, but two – on gambling and false claims – were subsequently removed.
Malaysia’s constitution stipulates which offences Parliament can make laws on (the Federal List or List I, and which ones state assemblies can legislate (State List or List II).
Nike Elin and Tengku Yasmin Natasha filed their petition directly to the Federal Court under Article 4(4) of the federal constitution on May 25, 2022. They named the Kelantan government as the sole respondent.
Article 4(4) states that leave from a judge of the Federal Court is required before any commencing any challenge against a law.
On September 30, 2022, the apex court granted the duo leave to commence their constitutional challenge.
On November 20 last year, a full nine-member Federal Court bench led by Chief Justice Tun Tengku Maimun Tuan Mat completed hearing submissions from both sides, but reserved judgement until today.
Submissions supporting Nik Elin’s petition were heard from amicus curiae (friends of the court), that included Sisters in Islam and the Malaysian Bar.
The Kelantan government, meanwhile, was supported by the Federal Territories Islamic Religious Council (MAIWP) as amicus curiae.
Other interested parties that had watching briefs in the case were the Muslim Lawyers Association of Malaysia, Perak Islamic Religious and Malay Customs Council (MAIAMP) and Terengganu Islamic Religious and Malay Customs Council (Maidam).
Why this case matters
Nik Elin’s petition had triggered PAS into accusing her of being anti-Islam and anti-God.
On November 20, when the Federal Court sat to hear submissions on the case, PAS members and supporters held a rally dubbed ‘Gerakan Selamatkan Shariah’ outside the Palace of Justice.
Nik Elin has said her petition has nothing to do with Islamic doctrine and is only aimed at the competency of the Kelantan assembly to enact laws that are not in the State List.
Legal scholar Professor Emeritus Datuk Shad Saleem Faruqi has dismissed notions that the petition will legalise sins under Islam.
“The petitioner (Nik Elin) is not saying that what is sinful (in Islam) should be allowed. The issue is the venue of the trial instead of whether it is wrong or right.
“For example, surely, murder is wrong in Islam. But it does not go to the shariah courts as the federal constitution states that crime in general is (to be tried) in the civil courts,” Shad Saleem told Scoop.
The case will also clarify the separation of powers between the federal and state governments in the matter of Islamic offences.
“It will clarify the widespread misunderstanding that all Islamic matters are in state hands. Actually, much of Islamic criminal law, contract, commercial, banking and tort law is in federal hands,” the constitutional law expert said, while noting that Muslim personal law on divorce, nafkah (alimony) and faraid (inheritance), on the other hand, are rightfully decided by the state assembly and shariah courts.
Other judges on the Federal Court bench are Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli and Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais. – February 9, 2024