[UPDATED] Kelantan shariah case: chief justice warns against stoking public sentiments 

PUTRAJAYA – Chief Justice Tun Tengku Maimun Tuan Mat has issued a reminder for all parties to abide by the rule of law and refrain from stoking public sentiments via distorted statements.

She said this before commencing today’s hearing on a constitutional challenge brought by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, against the 18 provisions under the Kelantan Syariah Criminal Code (I) Enactment 2019.

“As we have stated at the outset of the hearing on 17 August 2023, the issue is not about undermining the position of Islam or the shariah courts in the country. The issue arising out of the petition is simply about the competency of the Kelantan state legislative assembly to enact the impugned provisions,” said Tengku Maimun, who chairs the nine-person bench today.

“We take note of Encl 149 filed by the petitioner, in respect of some statements made by counsel for Majlis Agama Islam dan Adat Melayu Terengganu (En. Yusfarizal), in particular at para 4.2 which reads: ‘Kita perlu faham latar belakang beberapa kes yang ingin mencabar Mahkamah Syariah sebelum ini sudah berlaku. (tetapi bagi saya), kes Nik Elin ini adalah penghujungnya sebelum satu ‘batu nisan’ diletakkan (bagi menguburkan) Mahkamah Syariah di Malaysia.’

“Subject to whatever reply that En. Yusfarizal wishes to make to the affidavit, we would like to remind lawyers that you are bound by the ethics of your profession and you know very well that it is not appropriate to discuss pending cases at a public forum, more so when you failed to disclose the full facts of the case.

“The statement that ‘Mahkamah Syariah akan berkubur di Malaysia’, is untrue. Also, counsel failed to disclose the fact that the petitioner had conceded that two provisions out of the 20 impugned provisions are in fact within the purview of the Kelantan state legislative assembly to enact and thus under the shariah court to administer.”

She added that the court is taking “this unusual step of making this observation” as much of what has been said was “the distorted version of what the real issue is”.

Her stern reminder voiced on behalf of the bench came as a response to the duo’s affidavit over a public statement allegedly issued by one of the lawyers representing the Terengganu Islamic Religious and Malay Customs Council.

Jaheaik is acting as an intervener in the proceedings of the case.

The panel is also expected to hear oral submissions from two amicus curiae (friend of the court) – the Federal Territories Islamic Religious Council and the Muslim Lawyers’ Association Malaysia.

PAS has characterised the case as an attack on Islam, condemning Nik Elin for allegedly undermining the faith through the suit. 

In response, PAS is holding a Gerakan Selamatkan Shariah rally in front of the Palace of Justice here at the same time as the proceedings.

Nik Elin and Tengku Yasmin Natasha initiated the case on May 25 last year, seeking 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 suit, 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 shariah 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, Chief Judge of Sabah and Sarawak 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 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.

Counsels Datuk Malik Imtiaz Sarwar and Surendra Ananth represent the mother-daughter duo, while Datuk Kamaruzaman Muhammad Arif appears for Jaheaik.

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 shariah law in Kelantan and other states. – November 20, 2023