16 provisions ruled unconstitutional

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

In an 8-1 majority decision, the apex court allowed the application by a mother-and-daughter duo who challenged the 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, mounted the challenge on the grounds that the provisions were invalid as the Kelantan State Legal Authority did not have the power to enact the laws.

Chief Justice Tengku Maimun Tuan Mat, who chaired the full coram 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.

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“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 yesterday.

The CJ said that if the law provisions enacted by the state legal authority were items that were already on the Federal List, the state legal authority had no power to enact the said law.

The Ninth Schedule of the Federal Constitution lists matters under the purview of the Parliament and state legal authority. These are known as the Federal and State lists.

A third list – the concurrent list – states matters that either Parliament or the state can enact laws on, but Parliament’s laws will supersede state laws.

“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 cannot go beyond each other’s list,” the CJ said.

The panel then moved to strike out Sections 11, 14, 16, 17, 31, 34, 37, 39, 40, 41, 42, 43, 44, 45, 47, and 48 of the Kelantan Syariah Criminal Code (1) Enactment 2019 as null and void.

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

However, the Federal Court ruled that Section 13 (selling or giving away a child to a non-Muslim or morally reprehensible Muslim) and Section 30 (words capable of breaking peace) were constitutional and valid as the subject matters were within the State List.

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.