PUTRAJAYA – The Federal Court today struck out 16 provisions in the Kelantan Shariah Criminal Code (I) Enactment 2019 in favour of Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman.
In an 8-1 split majority decision, a nine-person bench chaired by Chief Justice Tun Tengku Maimun Tuan Mat ruled that the state assembly had no power to enact the 16 provisions, as the offences in question fell within the purview of federal law.
They, however, did not strike down the remaining two provisions, which were the subject matter of the challenge, namely Sections 13 and 30 of the enactment.
Section 13 pertains to the act of selling or offering children to individuals who are not of the Muslim faith or to morally objectionable Muslim individuals, whereas Section 30 addresses language that has the potential to incite unrest or disturb public order.
Previously, Nik Elin and her daughter had contested 20 provisions under the enactment when the suit was filed in 2022.
“On the first hearing of the case, the petitioners dropped two provisions, namely Section 5 (false claim) and Section 37 (gambling).
“Following the retraction, the court considered these provisions as legal.
“Out of the remaining 18, we found two provisions, namely Section 13 (selling or giving away a child to a non-Muslim or morally reprehensible Muslim) and Section 30 (words capable of breaking peace), contested are legal,” she said.
She backed the bench’s decision with reasons that the Ninth Schedule of the Federal Constitution, which delineates the legislative powers of both the federal and state governments as outlined in the respective federal and state lists.
“If the provisions enacted by the state legislature fall within the purview of the federal list, the state doesn’t have the authority to enact such laws.”
She also said that the contention raised by Nik Elin and her daughter has no bearing on the position of Islam or the Shariah court in the country, as both are protected under federal law.
Meanwhile, the Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli dissented, maintaining that the state assembly is empowered to enact all 18 provisions.
He argued that both Nik Elin and her daughter lack the locus standi to challenge the provisions since they were never charged under them, thus asserting that the provisions do not affect them.
The other panel members are Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, Chief Justice of Malaya Tan Sri Mohamad Zabidin Mohd Diah, 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.
Via this suit, the mother and daughter sought the court’s declaration to nullify all the provisions contended, with reasons saying that they bear resemblance to existing provisions within the federal list and offences outlined in the Penal Code.
The Kelantan Shariah Criminal Code (I) Enactment 2019, which lists 68 offences, was gazetted in December 2020.
After retracting two provisions, the remaining 18 were challenged under the Kelantan Shariah Criminal Code (I) Enactment 2019. – February 9, 2024