Lawyer in Kelantan state law challenge case moots changing Federal Constitution to end future deadlock between civil and Shariah courts

PUTRAJAYA, Nov 20 — Amid a constitutional challenge to the legality of Kelantan’s Islamic penal code, a lawyer acting for a Terengganu islamic body today made a proposition he believes will put an end to all potential legal disputes between which jurisdiction has the ultimate say in criminal cases – the civil or the Shariah courts

While the judges have yet to reach a decision, Yusfarizal Yusoff proposed that Parliament consider amending the Federal Constitution to ensure Shariah law is paramount.

He says that the federal lawmakers must pay heed to the voices and demands of the majority in society and change the Constitution to ensure it reflects and addresses their very “real” concerns.

“When the Federal Court delivers its ruling, we will accept it, move on and continue our other efforts because it is a part of what society believes.

“As the Islamic community in Malaysia believes, we can be subjected to two legal systems that are civil and Shariah,” he said in a press conference at the Palace of Justice court complex here this afternoon.

The lawyer added that while the constitutional interpretation must be respected, “there are other ways to continue” the protection of the criminal code for Muslims.

He said that taking such disputes to court is only one way.

“But if there are further challenges and deadlocks, then we need to amend the Federal Constitution,” he said.

He stressed that his suggestion is just an alternative to any hypothetical outcome to the constitutional challenge the judges in the apex court had heard earlier.

This morning, Yusfarizal held a watching brief for the Terengganu Islamic Religious and Malay Customs Council (Maidam) in the ongoing case where the Kelantan government was being sued by a Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman who claim the state is not empowered to enact Shariah criminal laws that go against the Federal Constitution.

Yusfarizal also said that none of the counsel appearing before Federal Court this morning had incited the public to commit unrest, after Chief Justice Tun Tengku Maimun Tuan Mat told the lawyers present during the hearing against distorting the facts of the case.

Yusfarizal said the Kelantan legal team is committed to upholding the rule of law after hundreds of people showed up outside the Palace of Justice to voice their objection to the constitutional challenge.

The rally had been called by federal Opposition MPs who have described the constitutional challenge as a threat to the Kelantan state government’s right to enact Islamic laws.

In their legal challenge filed directly with the Federal Court on May 25, 2022, Nik Elin and Tengku Yasmin argued that the Kelantan state legislative assembly did not have the powers to create 18 provisions in the Kelantan Shariah Criminal Code (I) Enactment 2019.

The two women want the Federal Court to declare the 18 provisions as invalid, null and void, as they claim the Kelantan state legislature has no powers to make laws on these matters.

The initial 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 Shariah code 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).

However the 20 impugned provisions were later reduced to 18 provisions after Section 5 and Section 37(a) were dropped from the petition hearing as disclosed by lawyers representing Nik Elin.

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 Shariah 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.