“JUDGES rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the time,” said Warren E. Burger, an attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986.
Very few judicial decisions in our Constitution’s 66-year history reflect Burger’s ideal as firmly as the Federal Court’s scintillating judgment last Friday in the case of Nik Elin Zurina and Tengku Yasmin v Kerajaan Negeri Kelantan (2024).
Facts: The Petitioners are Kelantanese by birth and own properties in the state. They challenged the power of the Kelantan State Assembly to enact 19 or so provisions in a 2019 Kelantan Criminal Enactment. The provisions duplicate crimes already existing in the penal laws of the Federation. The petitioners were not claiming any violation of human rights. Nor were they claiming that the offences were not offences against the precepts of Islam. What they were submitting was that under the Federal Constitution’s Schedule 9, the proper legislative and enforcement authority for these crimes should be the Federal Government and not the government of Kelantan.
Issue in contention: The basic issue was the jurisdiction or competency of the Kelantan Assembly to create these offences and the forum in which these offences must be prosecuted. Regrettably, many politicians and their lawyers are mischievously converting this jurisdictional issue into a “religion and royalty issue” and misleading the innocent public that Islam, the power of the State Rulers, and the survival of the Syariah Courts are under threat due to this judicial ruling.
Legal fundamentals: Due to a lack of constitutional literacy, there are a number of popular misconceptions that need correction. First, our Constitution is the supreme law of the land (Article 4). Neither the Federal Parliament nor the State Assemblies have unlimited legislative competence. Their legislative powers are enumerated in the Legislative Lists in Schedule 9.
The Federal List has 27 and the State List has 13 items. The preponderance of power is with the federal legislature.
Second, if either the Federal Parliament or the State Assemblies trespass into each other’s legislative competence, the superior courts have the power of judicial review (Articles 4, 121 and 128).
Third, though Islam has an exalted position as “the religion of the Federation” (Article 3), this does not make syariah legislation, the Syariah Courts and the syariah establishment exempt from judicial review on the litmus test of constitutionality. Independence of Syariah Courts is only in respect of “any matter within the jurisdiction of the Syariah Courts” [Article 121(1)]. On constitutional or jurisdictional issues, the High Court cannot be ousted.
Fourth, contrary to what is being propagated by some politicians and their lawyers, not all matters of Islam are within the jurisdiction of states. The rich jurisprudence of Islam inspires topics in both the Federal and State Lists. For example, foreign pilgrimages (including the haj), banking (including Islamic banking), money-lending, pawnbrokers, contracts, trade and commerce, criminal law and procedure, administration of justice, law of evidence, corruption, betting and lotteries are all within federal and not state jurisdiction, despite the wealth of syariah principles in these areas. Thus, if a Muslim sues Lembaga Tabung Haji or Bank Islam, the dispute is resolved under federal law and in the civil courts.
Fifth, as to the legislative turf of the states, their assemblies have exclusive power over Syariah Courts and 24 specifically enumerated topics of “Islamic law and personal and family law” of Muslims in such areas as succession, gift, marriage, divorce, adoption, legitimacy, Muslim religious trusts, Malay customs, zakat, fitrah and mosques (Schedule 9, List II, Item 1). The powers of the assemblies are clearly defined, and there is no blank-cheque power to pass laws on all matters covered by syariah.
Sixth, criminal law is largely in federal hands (Schedule 9, List I, Item 4). However, states have the power to create and punish offences against the precepts of Islam subject to a number of important limitations:
1. Crimes punishable in Syariah Courts must not relate to any matter in the Federal List (Schedule 9, List II, Item 1) or covered by federal law (Schedule 9, List I, Item 4(h). This means any offence within the power of the Federal Parliament or already dealt with by federal law is outside the jurisdiction of the State Assembly and the Syariah Courts.
Offences like treason, corruption, murder, robbery, theft, rape, homosexuality between males, cheating, betting, and blasphemy and the 511 sections of the Penal Code are all outside the powers of the state, even though they may be part of the jurisprudence of Islamic criminal law.
2. The jurisdiction of Syariah Courts in respect of offences must be conferred by federal law. The Syariah Courts (Criminal Jurisdiction) Act 1965 provides that Syariah Courts may try any offence punishable with three years’ jail, a RM5,000 fine, and six strokes of the cane. In comparative terms, this is lower than the power of magistrates. The intention in 1965 was to allow Syariah Courts to try only minor Islamic offences. Serious crimes like murder, theft, robbery and rape, which are Islamic offences as well but also universally condemned, were assigned to federal jurisdiction.
Allegations by critics: In order to gain political mileage, some critics of the Federal Court decision are alleging that with the invalidation of 17 Kelantan state provisions, the court has given a stamp of legitimacy to the crimes contained therein.
This is maliciously false. All the invalidated crimes are already punishable under federal law, and federal law is unaffected by this decision. In fact, punishment under federal law is far greater than under invalidated state laws.
The court merely identified the correct holder of the jurisdiction and censored the constitutionally ultra vires trespass by the State Assembly into matters within federal competence.
There is a proposal that the Constitution should be amended to transfer the item on “crimes” to the Concurrent List so that both the federal and state legislatures can pass laws on the whole range of crimes. This will result in two different sets of criminal laws, two differing sets of punishments, issues of equality before the law (Article 8) and possible issues of double jeopardy (Article 7).
Note also that Article 75 mandates that in any case of inconsistency between federal and state laws, the federal law shall prevail.
A further allegation by the critics is that Syariah Courts have been emasculated and much of their power has been taken away.
The reality is that only the ultra vires (illegal) exercise of power was invalidated, but Syariah Courts retain power over 24 topics of Islamic family and personal laws and the power to create and punish offences against the “precepts of Islam”.
It is noteworthy that in a long line of cases, including Fathul Bari (2012) and Nik Elin (2024), the civil courts have defined the term “precepts of Islam” broadly to refer to Islamic aqida (fundamental tenets), akhlaq (virtues and character), and adab (etiquette and manners).
Through this generous interpretation, the civil courts have aided and not constricted the borders of syariah court jurisdiction.
Another allegation is that restricting the powers of the syariah court is an insult to the Rulers, who are the head of Islam in the state. The real insult was to mislead His Majesty about what the Constitution permitted or forbade.
In any case, federal laws often get invalidated. Is that an insult to the Yang di-Pertuan Agong who assented to them?
All in all, the Federal Court’s learned judgment was solidly grounded on the Federal Constitution’s federal-state division of powers.
It was a clarion call to the state authorities to not treat themselves as above the Constitution and to show respect for our federal charter. The judgment has no adverse effect on Islam, the religion of the Federation. It is about who – the federal or state legislatures – are constitutionally competent to pass laws on general crimes.
All Malaysians should celebrate that the supreme Constitution is in renaissance and that it is being enforced by an independent judiciary that does not pander to public opinion or bow to political pressures.
Emeritus Professor Dr Shad Saleem Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. A more detailed comment on the Federal Court’s 84-page learned judgment will appear in the next column. The views expressed here are entirely the writer’s own.
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