[UPDATED] Federal Court reserves judgment on Nik Elin v Kelantan govt

PUTRAJAYA – The Federal Court is reserving its judgment in the constitutional challenge brought by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, against 18 provisions under the Kelantan Syariah Criminal Code (I) Enactment 2019.

“Thank you, we will CAV this matter,” said Chief Justice Tun Tengku Maimun Tuan Mat, who presided over the nine-panel bench today after listening to submissions from six amicus curiae and watching brief counsels.

CAV, which is “curia advisari vult”, means that the court wishes to be advised, in which this phrase is used to indicate that the court has not yet made a decision. 

While amicus curiae means a person or group that is not included in the petition but has strong interest in the matter. 

Earlier, the court heard submissions from amicus curiae Sisters in Islam and the Malaysian Bar, who were in support of the petition brought by Nik Elin and Tengku Yasmin Natasha.

The two parties agreed with the petitioners’ grounds in the suit and that the Kelantan state assembly does not have power to make laws on the provisions under the enactment as the provisions fell under the Federal List.

While other parties in today’s hearing, including the Federal Territories Islamic Religious Council, who is the other amicus curiae in the suit, with watching briefs including the Muslim Lawyers Association of Malaysia and the Perak Islamic Religious and Malay Customs Council disagreed with the petition.

Lawyer Mohamed Haniff Khatri Abdulla, who represented the Muslim Lawyers’ Association of Malaysia today, submitted that the state law should not be rendered null and void just because a particular area of law under federal power and Islamic law intertwined. 

Before today’s proceedings, Tengku Maimun issued a stern reminder for all parties to abide by the rule of law and refrain from stoking public sentiments via distorted statements.

“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.” 

The constitutional challenge was initiated by Nik Elin and Tengku Yasmin Natasha on May 25 last year. The suit was brought against the Kelantan state government.

The mother-daughter duo challenges the constitutionality of 18 provisions under the Kelantan Syariah Criminal Code (I) Enactment 2019, where they 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 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). 

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). – November 20, 2023