PUTRAJAYA, Aug 17 — The Federal Court emphasised today that there was no dispute arising over Islam as the official religion of the Federation in the hearing of two Malaysian Muslim women’s constitutional challenge to 20 Shariah offences under the Kelantan state law.
At the onset of today’s hearing, Chief Justice Tun Tengku Maimun Tuan Mat who was chairing a nine-member bench, said the petition heard before the court is entirely unrelated to Islamic doctrines or precepts but solely on the interpretation of words within the Federal Constitution (FC).
“There is no question whatsoever that arises over the petitioner or this court in wishing to undermine the position of Islam,” she said in setting the record straight.
In the two women’s challenge, they argued that the Kelantan state legislative assembly did not have the powers to create these 20 Shariah provisions in a state law, as it is the federal government instead which holds the powers under the FC to make laws on such crimes.
They had filed the court challenge directly to the Federal Court as it has exclusive jurisdiction to decide such questions, based on Article 128(1)(a) of the FC.
Lawyer Datuk Malik Imtiaz Sarwar, representing the duo, argued the inconsistencies between laws passed by Parliament and the respective state legislatures were to be resolved in favour of federal law as provided under Article 75 of the FC.
Article 75 provides that if any state law is inconsistent with a federal law, the federal law shall prevail and the state law shall, to the extent of the inconsistency, be void.
“Any criminal justice system put in place under the FC would not be constitutional if it discriminated between Malaysians (or other persons) on grounds of religion.
“Every person, regardless of their religion, is entitled to be treated as being equal before the law.
“This would require that offences in the public sphere be investigated, prosecuted and adjudged in the same way for all persons,” he said.
Malik further argued that discrimination would arise from the existence of two parallel systems of criminal law as Muslims can be subject to two different sets of punishments and procedures for offences included in the Penal Code and Islamic law.
He had addressed the bench earlier to clarify his client’s stance purely from a rule of law aspect, emphasising further that they were not challenging the precepts of Islam, but were concerned they could be subjected to two sets of laws in Kelantan as Malaysian Muslims.
He cited the recent Federal Court judgment in 2021 where a nine-judge panel had unanimously ruled that a Selangor state law’s provision which made unnatural sex a Shariah offence is invalid and having gone against the FC.
“It is not in dispute that the pith and substance of the said 20 impugned provisions have already been made the subject of Federal criminal legislation,” he said.
Representing the Kelantan state government, lawyer Datuk Kamaruzaman Muhammad Arif argued that since the disputed provisions are offences against the Islamic precepts, therefore the Kelantan state legislative assembly and not Parliament has the legal authority to draft legislations on offences committed by Muslims in Kelantan.
From a historic point of view, Kamaruzaman cited the Reid Commission report where the original Constitution drafters had intended for matters relating to the Muslim religion or the custom of the Malays to be reserved within the respective states’ scope of power.
The Reid Commission was an independent commission responsible for drafting the Constitution of the Federation of Malaya prior to Malaya’s independence from the British colonial power.
Kamaruzaman added that his client wanted a revisit of the aforementioned 2021 case as they felt the Federal Court had wrongly decided on the matter.
He also said the authority accorded to state legislative assemblies to draft shariah laws is also recognised under the Syariah Courts (Criminal Jurisdiction) Act, with both shariah law and civil law coexisting together.
Other judges on the nine-member panel include President of the Court of Appeal Tan Sri Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais.
Earlier, the court also unanimously dismissed a bid by the Kelantan Islamic Religious Affairs Department (JAHEIK) to act as an intervener or be made a party in the proceedings after finding there was no legal basis for JAHEIK to intervene.
What is being challenged
On May 25, 2022, Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed the constitutional challenge directly at the Federal Court via Article 4(4) of the Federal Constitution, and named the Kelantan state government as the sole respondent.
Under Article 4(4), the validity of any laws made by Parliament or a state legislature can be questioned in court, based on reasons that Parliament or a state legislature did not have powers to make those laws. For such constitutional challenges under the Article 4(4) route, it can only start if a Federal Court judge grants leave or permission.
On September 30, 2022, the Federal Court allowed the two women to start their constitutional challenge.
Through the court challenge, the two women are seeking for the Federal Court to declare that 20 provisions of Kelantan’s Syariah Criminal Code (I) Enactment 2019 are invalid and null and void, as the Kelantan state legislature has no powers to make laws on these matters.
The 20 provisions cover various Shariah offences listed by the Kelantan state legislature, including Sections 5 (false claim); 11 (destroying or defiling place of worship); 13 (selling or giving away child to non-Muslim or morally reprehensible Muslim); 14, 16 and 17 (sodomy, sexual intercourse with corpse, sexual intercourse with non-human); 30 (words capable of breaking peace); and 31 (sexual harassment).
The rest of the 20 provisions are Sections 34 (possessing false document, giving false evidence, information or statement), 36 (anything intoxicating), 37 (gambling), 39 (reducing scale, measurement and weight), 40 and 41 (executing transactions contrary to hukum syarak and executing transactions via usury), 42 (abuse of halal label and connotation), 43, 44, 45, 48 (offering or providing vice services, preparatory act of offering or providing vice services, preparatory act of vice and “muncikari” otherwise known as a person acting as an intermediary between a woman and man or between the same gender for certain offences) and 47 (act of incest).
Under the Federal Constitution’s Ninth Schedule, there are two different lists that say what the federal government — via Parliament — has powers to make laws on, and what the state governments — via their state legislative assemblies — have powers to make laws on.
List I is the Federal List which states what Parliament can make laws on, while List II or the State List provides a separate and shorter list of what state governments can make laws on.
Kelantan’s Syariah Criminal Code (I) Enactment 2019 was gazetted on December 31, 2020 and lists more than 50 offences, and is said to have come into force on November 1, 2021.
