THE FEDERAL Court has ruled that 16 provisions under the Kelantan Syariah Criminal Code (l) Enactment 2019 are unconstitutional and invalid.
Chief Justice Tun Tengku Maimun Tuan Mat, who led a nine-member panel of judges, delivered the historic verdict this morning following a challenge mounted by a Muslim woman and her daughter, both natives of Kelantan.
Tengku Maimun said that the court allowed their petition because the Kelantan state assembly had approved laws that it did not have the authority to make.
However, the panel decided that two other provisions that were also challenged are valid.
The verdict was reached through an 8-1 majority judgement with Tan Sri Abdul Rahman Sebli, the chief justice of Sabah and Sarawak, making the dissenting decision.
Nik Elin Zurina Nik Abdul Rashid, who is a lawyer, and her daughter Tengku Yasmin Nastasha Abdul Rahman had challenged the constitutionality and validity of 18 provisions under the Kelantan Syariah enactment.
According to a report, Nik Elin Zurina was present at the court today to hear the verdict.
They claimed that the Kelantan State Legislature did not have the power to enact laws on these offences because there are federal laws covering the same.
They had filed the petition directly with the Federal Court under Article 4(4) of the Federal Constitution, naming the Kelantan government as the sole respondent in this case.
They contended that the state provisions addressing syariah offences, encompassing acts such as incest, gambling, sodomy, and sexual harassment, were deemed invalid since these matters are already addressed by federal law.
Nik Elin and Tengku Yasmin Nastasha were represented by lawyer Datuk Malik Imtiaz Sarwar.
The Kelantan state government, being the sole respondent, was represented by lawyer Datuk Kamaruzaman Muhammad Arif.
The rest of the panel of judges were 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.
They ruled that Sections 11, 14, 16, 17, 31, 34, 36, 39, 40, 41, 42, 43, 44, 45, 47, 48 of the Kelantan Syariah Criminal Code (l) Enactment 2019 are null and void.
The provisions, as reported by Bernama, are:
> Section 11: Destroying or defiling a place of worship
> Section 14: Sodomy
> Section 16: Sexual intercourse with a corpse
> Section 17: Sexual intercourse with a non-human
> Section 31: Sexual harassment
> Section 34: Possessing false document, giving false evidence, information or statement
> Section 36: Anything intoxicating
- Section 39: Reducing scales, measurements and weights
- 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 (a male dressed in female's clothing or vice versa, which is contrary to hukum syarak).
The following two provisions, which were also challenged, were declared as valid:
> Section 13: Selling or giving children to non-Muslims or morally reprihensible Muslims
> Section 30: Words that can disrupt the peace – The Vibes, February 9, 2024
