Fed Court rules 16 of the 18 provisions challenged in Kelantan syariah law as unconstitutional

PUTRAJAYA: The Federal Court has ruled that 16 provisions of the Kelantan Syariah state law as unconstitutional.

In an 8-1 majority decision, the apex court allowed the application by a mother and daughter duo who challenged 18 provisions under the Kelantan Syariah Criminal Code Enactment 2019.

Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman made the legal challenge on grounds that the provisions were invalid due to the Kelantan State Legal Authority having no power to enact the law.

Chief Justice Tengku Maimun Tuan Mat, who chaired a panel of nine judges, said the issue at hand was whether the Kelantan State Legal Authority had enacted the impugned law provisions within the ambit of the Federal Constitution.

"In other words, the issue before us has nothing to do with the position of Islam or the Syariah Court here in the country.

"Whether Islam or the Syariah Court is defended or not, is not the question in this case," she said in a broad judgment on Friday (Feb 9).

In the majority decision, the CJ said that if the pith and substance of the law provision enacted by the state legal authority were items that were already within the Federal List, the state legal authority has no power to enact the said law.

According to the Ninth Schedule of the Federal Constitution, it had been stated which matters fell under the purview of the Parliament and state legal authority.

"In other words, the federal and state legal powers have been decided by the Federal Constitution in the Federal List and the State List, and the Parliament or the state legal authority could not go beyond each other's list," the CJ said.

The panel then moved to strike out Sections 11, 14, 16, 17, 31, 34, 36, 39, 40, 41, 42, 43, 44, 45, 47, 48 of the Kelantan Syariah Criminal Code (1) Enactment 2019 are null and void.

Among the law provisions that were struck were on destroying or defiling a place of worship (Section 11); sodomy (Section 14); sexual harassment (Section 31); possessing false documents, giving false evidence, information or statement (Section 34), gambling (Section 37) and incest (Section 47).

However, the Federal Court ruled that Section 13 (selling or giving away a child to non-Muslims or morally reprehensible Muslims) and Section 30 (words capable of breaking peace) were constitutional and valid as the subject matter in the provision were within the State List, hence they were within the ambit of the state legal authority.

The sole dissenting judgment came from Chief Judge of Sabah and Sarawak Justice Abdul Rahman Sebli who dissented on grounds of locus standi.

Other judges on the panel are Court of Appeal president Justice Abang Iskandar Abang Hashim, Chief Judge of Malaya Justice Mohamad Zabidin Mohd Diah, and Federal Court judges Justices Nallini Pathmanathan, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais.

Nik Elin Zurina and Tengku Yasmin Natasha filed their challenge on May 25, 2023 at the Federal Court via Article 4(4) of the Federal Constitution, naming the Kelantan state government as the respondent.

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