Experts: Kelantan Syariah Bill must not encroach upon Parliament’s jurisdiction
PETALING JAYA: The Kelantan state legislature remains strictly bound by the Federal Constitution and the legal principles established in the landmark Nik Elin case, according to constitutional expert Assoc Prof Datuk Dr Shamrahayu Abdul Aziz.
She said state legislation could cover offences involving Muslims, the Islamic faith, religious precepts, and morality but must not encroach upon matters detailed in the Federal List under the Ninth Schedule of the Federal Constitution.
Matters listed under the Federal List – including general criminal law – fall exclusively under Parliament’s jurisdiction, she added.
Shamrahayu said provisions designed to protect the sanctity of Islam, the dignity of Muslims, lineage and property generally fall within state powers.
“However, the state legislature and the Kelantan government’s legal advisers must ensure that the provisions are within the competency of the state legislature and do not contravene the Constitution,” she said.
She was commenting on the passing of the Syariah Criminal Offences (Kelantan) Bill 2026. The enactment replaces 16 provisions in the Kelantan Syariah Criminal Code Enactment 2019 that were struck down by the Federal Court last year.
In the Federal Court’s landmark ruling in the case of Nik Elin Zurina Nik Abdul Rashid and another versus the Kelantan government delivered on Feb 9, 2024, the apex court struck down 16 provisions in the Kelantan Syariah Criminal Code Enactment 2019 after ruling that the state legislature had enacted laws on matters that fell within Parliament’s jurisdiction.
Shamrahayu expressed concern over potential overlaps between the new provisions and the Penal Code.
Constitutional lawyer Joshua Wu warned several provisions in the Bill could face constitutional challenges due to jurisdictional overlap with federal law.
He cited Clause 16 on sexual acts, Clause 33 on intentionally losing sanity, and Clause 32 on false documents, noting they risk overlapping with federal powers governing general crimes, dangerous drugs, and evidence law.
Senior lawyer Mohamed Haniff Khatri Abdulla said the Federal Government should first disclose the recommendations of the Special Committee to Review the Competency of State Legislative Assemblies to Enact Islamic Laws, including any proposed amendments to the Federal Constitution.
“Once this is done, it would be safer for state governments to enact syariah laws they deem appropriate for their respective states.
“Otherwise, there is a risk that the newly passed Syariah Criminal Offences (Kelantan) Bill 2026 could be challenged in court again.
“If any provision from the previous law is revived simply by changing its wording or phrases, it could still be deemed as unconstitutional.
“Perhaps, it may be interpreted as contempt of court,” he said.
Kelantan Deputy Mentri Besar Datuk Dr Mohamed Fadzli Hassan said the newly passed Kelantan Syariah Criminal Offences Bill 2026 is a substantial overhaul of the previous law, with offences reworked to avoid direct conflict with the Penal Code.
The legislation, which was unanimously passed by the Kelantan state assembly, also introduces rehabilitative elements and community service while explicitly limiting its application to Muslims, he added.
The amendment was also aimed at strengthening the syariah legal framework while ensuring it remained within the constitutional limits of the state’s jurisdiction, he added.
