Federal Court Rules Kelantan Shariah Criminal Enactment as Unconstitutional


CJ says challenged provisions under Kelantan Shariah criminal enactment mandated by state not Allah, cannot be construed as act against God

Malaymail Online By Kenneth Tee
Friday, 09 Feb 2024 1:38 PM MYT

PUTRAJAYA, Feb 9 — The country’s top judge said today a constitutional challenge brought by two Muslim women to nullify 18 provisions under the Kelantan Shariah criminal enactment cannot be construed as blasphemy since the laws had been mandated by the state legislative assembly and not Allah.

Earlier, the Federal Court in a majority verdict of 8-1 struck down 16 out of 18 provisions under the Kelantan Shariah criminal enactment as unconstitutional, ruling that the Kelantan State Legislature does not have the power to enact laws on said offences because there are federal laws covering the same.

Chief Justice Tun Tengku Maimun Tuan Mat, who led a nine-member panel of judges, explained that there were three types of punishment under Islamic law; namely hudud, qisas and takzir.

Explaining each, Tengku Maimun said hudud were punishments fixed by Allah whereas qisas were punishments interpreted to mean retributive justice that are also fixed by Allah.

On the other hand, takzir refers to punishment for offenses at the discretion of the judge and not mandated by Allah.

“The Shariah Courts in Malaysia, up until today, do not enforce hudud or qisas, only takzir.

“The Civil Courts also enforces takzir. Thus, there is no difference between both courts because both Shariah and Civil enforce the same punishment.

Yet, there is one difference Tengku Maimun said, being that the takzir enforced by the Shariah Courts are based on laws set by the respective state administrations which have been legislated by its legislative bodies; whereas the ones enforced by the Civil Courts are laws fixed by the federal administration which has been legislated by Parliament.

“So, if there are any parties wishing to challenge the laws legislated by the respective state assemblies enforced by the Shariah Courts on grounds that said legislative body lacked the authority to do so, and if the Civil Courts allowed that challenge, both the court and the challenger cannot be said to be against Allah because the laws being disputed are not mandated by Allah but by the state assemblies,” she said.

Thus, Tengku Maimun asserted that there was no issue arising over the position of Islam or the Shariah Courts if one were to observe the present constitutional challenge from this aspect.

She then followed up with a stern reminder that the Federal Constitution guarantees the legislative power to all the state governments in drafting laws for the Shariah Court to enforce, dismissing claims that the ongoing case is an attempt to “bury” the powers of the Shariah courts.

“Looking at this challenge alone, neither the Shariah Courts nor Islamic laws will at any point in time buried with a tombstone as claimed by lawyer Yusfarizal Yusof,” she said.

Yusfarizal had held a watching brief for the Terengganu Islamic Religion and Malay Customs Council.

Last November, Tengku Maimun had warned Yusfarizal, stating the lawyer should have known better based on his professional ethics and that the remark on the Shariah court institution being “buried” is entirely untrue.

Yusfarizal’s remark was carried out in an article published by HarakahDaily — the outlet of the Islamist party PAS, which is opposing the constitutional challenge.

Nik Elin Zurina Nik Abdul Rashid, a native of Kelantan, along with her daughter Tengku Yasmin Nastasha Abdul Rahman, previously filed a petition directly with the Federal Court under Article 4(4) of the Federal Constitution, naming the Kelantan government as the sole respondent in this case.

The duo is challenging the constitutionality and validity of 18 provisions under the Kelantan Syariah Criminal Code (left) Enactment 2019, claiming that the Kelantan State Legislature does not have the power to enact laws on these offences because there are federal laws covering the same.

Through the court challenge, the two women sought the Federal Court to declare that 18 provisions of Kelantan’s Shariah Criminal Code (I) Enactment 2019 are invalid, arguing that the Kelantan state legislative assembly had overstepped its powers or had no powers to make such laws.

Source: CJ says challenged provisions under Kelantan Shariah criminal enactment mandated by state not Allah, cannot be construed as act against God

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From the STAR

Fed Court rules 16 of the 18 provisions challenged in Kelantan syariah law as unconstitutional
By Junaid Ibrahim and Nurbaiti Hamdan
9 Feb 2024

PUTRAJAYA: The Federal Court has ruled that 16 provisions of the Kelantan Syariah state law as unconstitutional.

In an 8-1 majority decision, the apex court allowed the application by a mother and daughter duo who challenged 18 provisions under the Kelantan Syariah Criminal Code Enactment 2019.

Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman made the legal challenge on grounds that the provisions were invalid due to the Kelantan State Legal Authority having no power to enact the law.

Chief Justice Tengku Maimun Tuan Mat, who chaired a panel of nine judges, said the issue at hand was whether the Kelantan State Legal Authority had enacted the impugned law provisions within the ambit of the Federal Constitution.

“In other words, the issue before us has nothing to do with the position of Islam or the Syariah Court here in the country.

“Whether Islam or the Syariah Court is defended or not, is not the question in this case,” she said in a broad judgment on Friday (Feb 9).

In the majority decision, the CJ said that if the pith and substance of the law provision enacted by the state legal authority were items that were already within the Federal List, the state legal authority has no power to enact the said law.

According to the Ninth Schedule of the Federal Constitution, it had been stated which matters fell under the purview of the Parliament and state legal authority.

“In other words, the federal and state legal powers have been decided by the Federal Constitution in the Federal List and the State List, and the Parliament or the state legal authority could not go beyond each other’s list,” the CJ said.

The panel then moved to strike out Sections 11, 14, 16, 17, 31, 34, 36, 39, 40, 41, 42, 43, 44, 45, 47, 48 of the Kelantan Syariah Criminal Code (1) Enactment 2019 are null and void.

Among the law provisions that were struck were on destroying or defiling a place of worship (Section 11); sodomy (Section 14); sexual harassment (Section 31); possessing false documents, giving false evidence, information or statement (Section 34), gambling (Section 37) and incest (Section 47).

However, the Federal Court ruled that Section 13 (selling or giving away a child to non-Muslims or morally reprehensible Muslims) and Section 30 (words capable of breaking peace) were constitutional and valid as the subject matter in the provision were within the State List, hence they were within the ambit of the state legal authority.

The sole dissenting judgment came from Chief Judge of Sabah and Sarawak Justice Abdul Rahman Sebli who dissented on grounds of locus standi.

Other judges on the panel are Court of Appeal president Justice Abang Iskandar Abang Hashim, Chief Judge of Malaya Justice Mohamad Zabidin Mohd Diah, and Federal Court judges Justices Nallini Pathmanathan, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais.

Nik Elin Zurina and Tengku Yasmin Natasha filed their challenge on May 25, 2023 at the Federal Court via Article 4(4) of the Federal Constitution, naming the Kelantan state government as the respondent.

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