KUALA LUMPUR – The Federal Court is set to hear a constitutional challenge brought by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, against the PAS-led Kelantan government.
The hearing is scheduled for today before a nine-member panel of judges, with Chief Justice Tun Tengku Maimun Tuan Mat presiding over the panel.
The case, initiated on May 25 last year, challenges the constitutionality of 20 provisions under the Kelantan Syariah Criminal Code (I) Enactment 2019.
Nik Elin and her daughter seek a declaration from the Federal Court to nullify these provisions, arguing their similarity to existing provisions under the Federal List and offences under the Penal Code.
The lawsuit, filed under Article 128(1)(a) of the Federal Constitution, pertains to the competency of any legislature to make laws and falls within the exclusive jurisdiction of the apex court.
On September 30, the mother-daughter duo invoked Article 4(4) of the Federal Constitution, and the Federal Court granted them leave to commence the suit.
The contested Syariah provisions include Section 13 (selling or giving away a child to non-Muslim or morally reprehensible Muslim), Section 14 (sodomy), Sections 16 and 17 (sexual intercourse with a corpse and with a non-human), as well as Section 42 (abuse of halal label and connotation).
Other members of the panel include Court of Appeal president Tan Sri Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah, Court of Appeal Judge Datuk Abdul Rahman Sebli, and Federal Court judge Tan Sri Nallini Pathmanathan.
Joining them are Federal Court judges Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan, and Datuk Abu Bakar Jais.
Notably, the initial list of 20 provisions was reduced to 18 during the case hearing on August 17, with the exclusion of Section 5 (false claim) and Section 37 (gambling).
Nik Elin and her daughter argue that the Kelantan state legislative assembly lacks the authority to enact laws already covered by federal law, citing the preclusion clause.
They draw parallels to the ‘Iki Putra’ case, where the Federal Court in 2021 ruled against the coexistence of federal law and state Islamic law on the same subject matter.
PAS has characterised the case as an attack on Islam, condemning Nik Elin for allegedly undermining the faith through the suit.
In response, PAS plans to hold a ‘Gerakan Selamatkan Shariah’ rally at the Palace of Justice in Putrajaya later today, expecting a turnout of over 1,500, including PAS president Tan Sri Abdul Hadi Awang and party leadership.
Counsels Datuk Malik Imtiaz Sarwar and Surendra Anath represent the mother-daughter duo, while Datuk Kamaruzaman Muhammad Arif appears for the Kelantan Islamic Religious Affairs Department.
The Kelantan Syariah Criminal Code (I) Enactment 2019, published in the state gazette on December 31, 2020, came into force on November 11, 2021.
The then Kelantan Menteri Besar Datuk Ahmad Yakob stated on November 16 of the same year that the enactment would strengthen Syariah law in Kelantan and other states. – November 20, 2023