ON May 25, 2022, Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed a petition challenging the constitutionality of 18 provisions of Kelantan’s Shariah Criminal Code (I) Enactment 2019.
The basis of the petitioners’ claim is rather straightforward, i.e the Kelantan state legislative assembly did not have the required powers to create those 18 shariah provisions in a state law.
Her constitutional challenge is made pursuant to Article 128(1)(a) of the federal constitution. Since the court’s jurisdiction has been invoked to declare the validity of such a state law, the Federal Court is the sole competent authority to make such a declaration pursuant to Article 4 (4) of the apex law.
Legally speaking, challenging the invalidity or constitutionality of any law – even a religious enactment – is nothing extraordinary; except, perhaps, in Malaysia.
In the case of Muhammad Aslam Khaki v Federation for Pakistan PLD 2010 Federal Shariat (equivalent of shariah in Malaysia) Court 191, the petitioner in that case had filed a Shariat Petition No.2/I of 2006 in order to challenge Articles 8 and 25 of the prohibition, (Enforcement of Hadd ) Order, 1979 – on the ground that those two provisions were violative of the injunctions and spirit of Islam. Hadd is a singular noun of hudud.
The case in Pakistan (supra) was heard before the Federal Shariat Court in Pakistan and having heard the arguments, the court unanimously decided to dismiss the application.
Though the Federal Shariat Court in Pakistan dismissed the application, it never accused the petitioner of making an attempt – via his application – to annul the Quran or the hadith though he clearly challenged the validity of the Islamic criminal law on drinking liquor.
In Nik Elin’s application, on the contrary, she never seeks to challenge the sanctity of the Islamic law which under the existing constitutional framework is duly reserved as the sole monopoly of the state’s jurisdiction.
On the other hand, she merely questions the jurisdictional competency of the state legislature in Kelantan in criminalising certain shariah offences as she is of the view such jurisdiction is only vested in Parliament.
The federal constitution has clearly demarcated the legislative boundaries of Parliament and state legislature in their law making enterprises.
Needless to say, our apex law does not bar Nik Elin or anyone for that matter from making such an application. Unfortunately some irresponsible elements have been trying to hammer home this uncalled-for-remarks that “there is an attempt to wipe out the Quran and the Hadith”.
I am of the view that Nik Elin’s suit would be a matter of public interest especially in drawing out clear constitutional guidelines of legislative competency on matters entailing grey areas.
She views the sole power to legislate some criminal offences is only given to Parliament as criminal matters fall squarely under the Federal List.
But some have different views – those 18 offences are considered “tazir” offences thus they are part of criminal offences under Islamic criminal law. Hence they fall under the state list as in pith and substance they deal with Islam.
Ergo, state legislature is duly conferred with such a jurisdictional competency. While it is to be expected for some political parties to gain some political mileage out of this issue, their careless action in making a mountain out of a molehill from this inflammatory issue is, however, deeply regretted.
May common sense prevail. – November 20, 2023
Mohamed Hanipa Maidin is a former law minister in Malaysia as well as a former MP. He was also a practising lawyer for almost 25 years. He has a degree in law and as well a degree in shariah.