KUALA LUMPUR – The 16 provisions that were struck out in the Kelantan Shariah Criminal Code (I) Enactment 2019 do not imply that the offences are “allowed” in the state, said the Shariah Judiciary Department Malaysia (JKSM) today.
Instead, the department clarified, the Federal Court’s decision to strike out the provisions is only meant to harmonise the shariah and civil courts’ jurisdiction.
Therefore, the statements made by certain quarters suggesting that offences like ‘khalwat,’ adultery, or alcohol consumption are no longer punishable for Muslims in the state are incorrect, the department stressed.
“Such statements are wrong because, despite the provisions struck out in the enactment, the criminal act remains an offence under the Penal Code, falling within the jurisdiction of federal law.
“If a Muslim in Kelantan commits adultery, the offence can be tried in a civil court, where the punishment stipulated by the Penal Code is more severe than the penalties outlined in the previous enactment.
“It should be understood that the recent Federal Court’s decision pertains solely to the question of jurisdiction, determining which offences fall under the purview of federal and state legislation.
“This, however, does not imply that Muslims in Kelantan are immune from punishment for committing such crimes. Rather, these cases cannot be adjudicated in shariah court; instead, they can be tried in civil court,” the department further clarified.
With the Federal Court’s ruling in effect, the department also provided examples illustrating that an offence committed by two individuals, one Muslim and the other non-Muslim, can be jointly tried in a civil court.
“For instance, consider the offence of muncikari. If a Muslim and a non-Muslim are accused of working together (in a crime), they can be jointly brought to trial in a civil court,” it said.
Muncikari is an offence committed when an individual acts as a procurer between a man and a woman for prostitution.
The department also said that the apex court’s decision strengthened the Islamic law in this country when Chief Justice Tun Tengku Maimun Tuan Mat said, while delivering her judgement, that both the shariah and civil courts used the takzir punishment system.
Takzir is a punishment that is not determined by Allah (unlike Hudud and Qisas), but the rate and form of punishment are determined by the government and will be imposed on criminals at the discretion of the judge.
The chief justice also stressed that the apex court’s decision does not mean that the position of Islam or the shariah court in the country will fade into oblivion.
On Friday (February 9), the Federal Court struck out 16 out of 18 provisions in the Kelantan Shariah Criminal Code (I) Enactment 2019 contested by Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman.
Among the provisions nullified are Section 48 (muncikari), Section 14 (sodomy), and Section 17 (sexual intercourse with non-humans).
The remaining two provisions, namely Sections 13 and 30, were declared legal by the apex court as they did not supersede the federal powers, as stated by lawyer Mohamed Haniff Khatri Abdulla.
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 or unrest or disturb public order’. – February 11, 2024