PETALING JAYA: Provisions in Kelantan’s new syariah criminal law aimed at protecting the sanctity and modesty of private parts could face legal challenges for potentially overlapping with federal criminal law, say lawyers.
Criminal lawyer Datuk N. Sivananthan said the provision appeared excessively broad and uncertain, with no clear indication of what conduct would constitute a breach.
“Depending on its interpretation, the provisions could encompass rape, incest, sexual assault and offences under Sections 377 to 377CA of the Penal Code.
“These are matters of general criminal law,” he said when contacted.
On Wednesday, the Kelantan state legislative assembly passed the Syariah Criminal Offences (Kelantan) Bill 2026, with the state government saying the legislation was intended to streamline and strengthen existing provisions.
Among the provisions are those covering aurat, gender change and the safeguarding of the modesty of private parts.
The Bill seeks to replace 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 state government that was 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 jurisdiction.
Sivananthan said changing the description of a specific sexual offence to an “obligation to safeguard private parts” could merely alter the form of the law without changing its substance.
“Unless its scope is clearly confined to a distinct religious offence that does not fall within federal criminal law, there is a high risk of overlap and unconstitutionality,” he said, while also raising concerns over the provision on false testimony, saying there was already federal legislation covering such offences.
“The Penal Code already regulates false information, false statements, false evidence and forgery through Sections 177, 181 to 182, 191 to 200 and 463 to 471,” he said.
Lawyer Andrew Khoo said the Ninth Schedule, List II, paragraph 1 of the Federal Constitution gives state legislative assemblies the power to create and punish offences by persons professing Islam against the precepts of that religion, except in matters under the Federal List.
“The provisions of the new Kelantan enactment would have to be tested against this section of the Federal Constitution to see if they are valid,” he said.
Khoo said the provisions appeared to be an attempt to work around the Federal Court’s decision in the Nik Elin case, which found that most provisions of an earlier Kelantan enactment exceeded the state legislature’s constitutional authority.
“At their core, these provisions seek to criminalise sexual conduct, an area clearly within the jurisdiction of federal criminal law.
“To the extent that these provisions are laws criminalising sexual conduct masquerading as religious law in order to evade the clear separation of federal and state jurisdictions, they will need to be challenged and struck down if necessary,” he said.
Senior Lawyer and Adjunct Professor of Universiti Malaya JJ Chan said Kelantan had constitutional authority to enact syariah laws on matters assigned to the states.
“The state government has explained that this Bill was prepared with the Federal Court’s decision in Nik Elin’s case in mind.
“The issue before the Federal Court in Nik Elin’s case was which legislature the Constitution authorises to create a particular offence.
“Both Parliament and the state legislatures exercise powers given to them by the Constitution, and each is confined to the matters the Constitution assigns to it, with each provision considered according to what it actually deals with,” he said.
