PUTRAJAYA – The petition filed by two women challenging the constitutionality and legality of 18 provisions in the Kelantan Shariah Criminal Code (1) Enactment 2019 has nothing to do with or affect the position of Islam or the shariah court in the country, said Chief Justice Tun Tengku Maimun Tuan Mat.
She said the court would need to decide whether the Kelantan Legislative Assembly made the provisions in accordance with the federal constitution’s limitations or otherwise.
“In other words, the issue before us has nothing to do with the position of Islam or the shariah court in the country.
“Whether (the position of) Islam or the shariah court is maintained or otherwise, is not a question in this case,” said justice Tengku Maimun, who led a nine-member panel of the Federal Court when reading out the judgement in the case.
The Federal Court, in an 8-1 majority decision today, in allowing the application by the two women, ruled that 16 provisions in the Kelantan Shariah Criminal Code (1) Enactment 2019 were null and void.
The two women, Nik Elin Zurina Nik Abdul Rashid, who is from Kelantan, and her daughter, Tengku Yasmin Nastasha Abdul Rahman, filed the petition with the Federal Court in accordance with Article 4(4) of the federal constitution and named the Kelantan state government as the sole respondent.
They claimed that the Kelantan Legislative Assembly did not have the authority to legislate on the 18 offences because there is a federal law that covers such offences.
Justice Tengku Maimun, in her summary judgement, said that if a party challenges a law enacted by the state legislature and implemented by the shariah court on the basis that the state legislature does not have the power to enact certain laws, and if the civil court allows the challenge, neither the challenging party nor the civil court can be considered to be acting against God.
This is because the law being challenged is not formulated by Allah but by the state legislative body, nor does it imply any failure on the part of the civil court to uphold the position of Islam or to empower the shariah court, she said.
“The shariah court or Islamic law in Malaysia will not be undermined or relegated to oblivion, as claimed by lawyer Yusfarizal Yusof, because the federal constitution guarantees legislative authority to all state governments to enact laws – laws that are enforced by the shariah court.
“It is reiterated once again that the subject of this petition is not the position of shariah law in Malaysia,” she said.
She also said that the allegations by the petitioners were specifically about the actions of the Kelantan assembly, which they described as “going beyond the power of the types of offences that can be approved by the state government, within the scope set by the federal constitution”.
She said there are three types of punishment under Islamic law, namely hudud, qisas and takzir.
The hudud punishment is a punishment that has been determined by Allah, while qisas means to inflict a similar punishment on the offender as has been caused to the victim.
“Like hudud, qisas is also determined by Allah. The difference between hudud and qisas is that qisas punishment must be claimed by the victim or the victim’s family. Diyat, which means compensation or damages, is part of the qisas punishment.
“Takzir is a punishment that is not determined by Allah but the rate and form of punishment are determined by the government and will be imposed on criminals at the discretion of the judge,” she said.
The chief justice said that as of today, the shariah court in Malaysia has not implemented hudud or qisas but only takzir, like the civil court.
She said there is no difference between the shariah court and the civil court because both courts mete out the takzir punishment.
The only difference is that the takzir punishment meted out by the shariah court is based on the law set by the government at the state level and passed by the state assembly, while the takzir punishment carried out by the civil court is in accordance with the law set by the government at the federal level and passed by Parliament, said the judge.
“I would also like to mention that the takzir punishment by the shariah court is subject to the Shariah Courts (Criminal Jurisdiction) Act 1965 (Act 355), which limits the prison sentence to a period not exceeding three years, a fine not exceeding RM5,000 and whipping not exceeding six times,” she said. – February 9, 2024