KUALA LUMPUR – The two provisions that were not struck out by the Federal Court in the decision for Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid’s suit today did not supersede federal powers, said lawyer Mohamed Haniff Khatri Abdulla.
He explained that the two provisions spared from being nullified, namely Sections 13 and 30 of the Kelantan Shariah Criminal Code (I) Enactment 2019, fell within the legal doctrine of “pith and substance”, or essence and true nature, of the state legislative assembly’s jurisdiction.
Section 13 of the enactment prohibits the “selling or offering of children to individuals who are not of the Muslim faith or to morally objectionable Muslim individuals”, while Section 30 makes it an offence to use “language that has the potential to incite unrest or disturb public order”.
He said the grounds revealed by the apex court regarding Sections 13 and 30 were retained in the enactment because the state government has the jurisdiction to enact the laws, which can be read alongside Article 11(4) of the federal constitution.
“The two provisions were deemed to be within the power of (the state’s) shariah (courts) or state legislative assembly, which do not encroach into the federal powers,” he said.
Haniff currently represents the Muslim Lawyers Association of Malaysia as the watching brief in the suit. His past clients in criminal and civil cases include Ahmad Najib Aris, who was convicted for the 2003 rape-murder of Canny Ong, and the Perlis Islamic Religious and Malay Customs Council in the ongoing unilateral conversion suit brought by single mother Loh Siew Hong.
He added that today’s Federal Court decision automatically nullified the 16 provisions contended, which means that no one can be charged, investigated or arrested under the laws that were struck out by the court.
Lawyer Datuk Seri Rajan Navaratnam said that pending cases under the now-nullified provisions would have been regarded as unconstitutional.
“If the court does declare that a particular law is unconstitutional, then the law holds no legal power and remains inoperative from its inception, as though it had never existed.
“The court will have to discharge the said cases and acquit them as the sections are (now) unconstitutional… in this regard, the said laws are void,” he said.
Meanwhile, lawyer Rajesh Nagarajan said he hopes the constitutional challenge brought by Nik Elin and her daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman, against Kelantan’s shariah provisions will serve as a catalyst for similar constitutional suits in the future.
Nagarajan told Scoop today that he hopes the case will inspire more people to challenge any state shariah law that clashes with the provisions under the Penal Code.
“I’m hoping that more people (will follow suit) because Nik Elin and her daughter have done a very noble thing.
“She stood to gain nothing from this suit. It is purely for the public interest so it is very altruistic of the mother-daughter duo to take the trouble to bring this case to court.
“All she has done (following today’s verdict) is that she has clarified the law… because there was something unconstitutional going on, which is unfair and illegal.
“So, she called it out, took it to court and (played her part) in ‘shutting down’ many sections of the Kelantan shariah law, which was deemed unconstitutional,” he said.
“I’m hoping that more people in other states would do the same (as Nik Elin) if they found out that their state has enacted laws that are unconstitutional, then they should immediately file a suit and get it struck down,” he added.
However, Nagarajan said that the defendants in the suit, which is the Kelantan state government, can still file a review against the apex court’s decision, as accorded under Rule 137 of the Rules of the Federal Court.
“However, if the parties wanted to review the apex court’s decision, they would have to file for permission (leave) first and foremost.”
Earlier, Chief Justice Tun Tengku Maimun Tuan Mat delivered the majority ruling in favour of Nik Elin and her daughter to strike out 16 out of 18 provisions challenged by the duo.
The duo, in 2022, initiated a constitutional challenge against 20 provisions under the Kelantan Shariah Criminal Code (I) Enactment 2019, seeking the court’s declaration to nullify them.
The mother-daughter duo contended that they bear resemblance to existing provisions within the federal lists and offences outlined in the Penal Code.
However, they dropped two sections, namely Section 5 (false claims) and Section 37 (gambling), at the onset of the suit hearing.
Today, the majority of judges also decided that the provisions that were dropped are indeed legal.
Apart from these two, Tengku Maimun also said that Section 13 (selling or offering children to individuals who are not of the Muslim faith or to morally objectionable Muslim individuals) and Section 30 (language that has the potential to incite unrest or disturb public order) out of the remaining 18 remaining provisions are legal.
This left 16 provisions, including Section 14 (sodomy) and Section 48 (a person acting as a procurer between a female and male for prostitution purposes), being nullified by the majority of the panel of judges. – February 9, 2024