Apex Court nullifies 16 out of 18 Syariah Criminal Provisions in Kelantan

THE panel of nine-judges today nullifies the validity of 16 out of 18 syariah criminal provisions in Kelantan today.

The panel led by Chief Justice Tun Tengku Maimun Tuan Mat in an 8-1 split majority decision, allowed the petition by Kelantan-born lawyer Nik Elin Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman who was challenging the constitutionality of 18 provisions in Kelantan’s Syariah Criminal Code (I) Enactment 2019.

Among the invalidated provisions are destroying a place of worship (Section 11), sodomy (Section 14), necrophiliac sexual intercourse (Section 16), bestiality (Section 17), and sexual harassment (Section 31).

Other struck down controversial Kelantan syariah criminal offences are possessing false documents and giving false information (Section 34), intoxication (Section 36), reducing scale measurement (Section 39), transactions that go against hukum syarak (Section 40), carrying out transactions involving usury, and abuse of halal label (Section 42).

The remainder of subject matters criminalised under religious law by the state legislature are offering or providing vice service (Section 43), preparing to offer or provide vice service (Section 44), preparing to indulge in vice (Section 45), incest (Section 47), and ‘muncikari’ or person acting as an intermediary between two people for certain offences (Section 48).

However, the Federal Court did not allow the family’s bid to nullify two Kelantan syariah criminal provisions, namely on giving away a child to a non-Muslim or morally corrupt Muslim (Section 13), and words that break the peace (Section 30).

Tengku Maimun ruled that Kelantan’s legislature exceeded its state-making power contained in the State List (List II) of the Ninth Schedule of the Federal Constitution.

She gave a reminder that what the Kelantan family was challenging was not the position of Islam and the syariah judicial system in Malaysia, but rather the constitutional validity of the specific 18 provisions of the state which the petitioners contended breached the limit of state-making power.

“The power of Parliament and state legislatures are limited by the Federal Constitution, and they cannot make any laws they like,” she said on behalf of the majority verdict.

The rest of the panel are Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah and Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan, and Datuk Abu Bakar Jais.

The only dissenting judge is Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli.

During previous proceedings, Justice Tengku Maimun said the issue was not about undermining the position of Islam or Syariah Courts in the country, but simply about the competency of the Kelantan State Legislative Assembly to enact the impugned provisions. – TMR / pic TMR FILE