In a landmark decision by the Federal court of the Malaysia with the majority decision nullified 18 provisions under the Kelantan Shariah Criminal code. Malaysia is a Federal nation having a dual-track legal system, with both government laws and Shariah laws wherein Sharia laws applies to Muslims handled by the Federal court and all other offences are handled by the civil courts.
The Federal Court in an 8-1 majority decision today allowed an application by two Muslim women to nullify 18 provisions under the Kelantan Syariah Criminal Code Enactment 2019. The landmark decision was delivered by Chief Justice Tun Tengku Maimun Tuan Mat who led a panel of nine judges. The Sections 11, 14, 16, 17, 31, 34, 36, 39, 40, 41, 42, 43, 44, 45, 47, 48 of the Kelantan Syariah Criminal Code (1) Enactment 2019 were declared null and void.
With the 8-1 majority, the Federal Court ruled that the Kelantan state government did not have the power to enact the laws, on offences from sodomy to sexual harassment, possession of false information, intoxication and scale measurements, because they were already covered in civil law and were the responsibility of the federal parliament.
The two women, who hails from Kelantan are Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Nastasha Abdul Rahman who filed the petition to the Federal Court under Article 4(4) of the Federal Constitution and named the Kelantan government as the sole respondent. Kelatan is a rural northeastern state whose population is 97% Muslim.
The constitutionality and legality of 18 provisions was challenged, in the Kelantan Syariah Criminal Code (1) Enactment 2019 claiming that the Kelantan State Legislative Assembly (DUN) does not have the authority to legislate on the 18 offences because there is a Federal law that covers such offences.
The court today allowed their application to revoke 16 of the offences.
Following are the 16 provisions of offences in the Kelantan Syariah Penal Code (1) Enactment 2019 which are void and not validly enforced in the state.
Section 11: Destroying or defiling place of worship
Section 14: Sodomy
Section 16: Sexual intercourse with a corpse
Section 17: Sexual intercourse with non-human
Section 31: Sexual harassment
Section 34: Possessing false document, giving false evidence, information or statement.
Section 36: Anything intoxicating.
Section 39: Reducing scale, measurement and weight.
Section 40: Executing transactions contrary to 'hukum syarak' (Syariah Law)
Section 41: Executing transactions via usury.
Section 42: Abuse of halal label and connotation
Section 43: Offering or providing vice services
Section 44: Preparatory act of offering or providing vice services
Section 45: Preparatory act of vice
Section 47: Act of incest
Section 48: Muncikari (men dressed in women's clothing or vice versa)
The two sections maintained by the Federal Court are:
Section 13: Selling or giving away child to non-Muslim or morally reprehensible Muslim.
Section 30: Words capable of breaking peace
The case was filed in 2022.
Malaysia’s top court has ruled that 16 Islamic laws in the northeastern state of Kelantan are unconstitutional in a landmark decision that could have major implications for the country’s legal system.
By an 8-1 majority, the Federal Court ruled on Friday that the Kelantan state government did not have the power to enact the laws, on offences from sodomy to sexual harassment, possession of false information, intoxication and scale measurements, because they were already covered in civil law and were the responsibility of the federal parliament.
Malaysia is a federal country where states have jurisdiction over laws related to Islam, the official religion. It also operates a dual legal system where Islamic law applies to Muslims, who make up just over 60 percent of the population, in personal and family matters, as well as the practice of their religion. All other offences are handled by the civil courts.
Kelantan, seen as the heartland of ethnic Malay Muslim culture, has been ruled by the opposition Parti Islam SeMalaysia (PAS) since 1990.
“The power of parliament and state legislatures are limited by the Federal Constitution and they cannot make any laws they like,” Chief Justice Tengku Maimun Tuan Mai was quoted as saying by Malaysia’s BFM radio as she delivered the findings of the nine-judge panel.
The case was brought in 2022 by Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter after the state government passed a new set of laws on Islamic offences.
The two challenged the constitutionality of 18 of the laws arguing that they were beyond the jurisdiction of the state assembly and already covered by parliament.
The Federal Court did not strike down the two other laws and Chief Justice Tengku Maimun stressed that the two women had not brought the case to challenge the position of Islam or the Islamic legal system.
Nik Elin Zurina reiterated that point as she spoke to reporters afterwards.
“As lawyers, we are officers of the court and I believe it is our duty as legal practitioners to uphold and defend the sovereignty of the law,” she said, according to the Malay Mail. “I did this not for myself, but all.”
About 1,000 people including PAS supporters and conservative Muslims gathered outside the court in Putrajaya ahead of the ruling.
Takiyuddin Hassan, PAS secretary-general and a member of parliament, criticised the ruling and said the party would raise the issue in parliament when it sits later this month.
“We are very sad today,” he said. “This is a Black Friday. Black Friday as the decision was against Islamic Shariah law.”
