Nik Elin’s case opens doors for more to challenge state syariah laws, says Mohd Na'im

KUALA LUMPUR: The recent apex court ruling to deem several provisions under the Kelantan syariah law criminal enactment as unconstitutional could pave the way for others to file similar petitions, says Datuk Dr Mohd Na'im Mokhtar.

When speaking at the special chambers at the Dewan Rakyat, the Minister in Prime Minister's Department (Religious Affairs) acknowledged this based on the context of judicial independence.

“It is quite difficult to prevent any party from challenging any provision (deemed unconstitutional) due to the Federal Court's ruling in the case of Nik Elin Zurina Nik Abdul Rashid (who filed the petition along with her daughter against the Kelantan syariah law criminal enactment at the Federal Court in 2021).

"Even though Nik Elin was not directly involved or had locus standi, the Federal Court ruled that she had the right to challenge provisions in Kelantan.

“What resulted in the case of Nik Elin has opened the door for any parties to submit an application to challenge any provision or law (of another state) as unconstitutional,” he told the special chambers on Thursday (Feb 29).

Na'im said this in reply to a supplementary question from Datuk Ahmad Saad @ Yahaya (PN-Pokok Sena) that syariah criminal enactments are subject to nullification without requiring the court to refer to the state legislative assemblies.

Touching on efforts to “stop” any party from submitting similar petitions against the state syariah laws, Na’im said the country follows the concept of separation of powers and judicial independence.

He referred to Article 128 of the Federal Constitution, which allows any party to challenge provisions enacted by state legislatures if they are perceived to exceed their jurisdiction.

On Feb 9, the Federal Court allowed Nik Elin and daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman’s challenge and declared 16 of the 18 provisions unconstitutional.

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

Nik Elin Zurina and her daughter made the legal challenge on the grounds that the provisions were invalid due to the Kelantan state legal authority having no power to enact such laws.

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.

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