THE DECISION by the Federal Court to strike down 16 provisions in the Kelantan Syariah Criminal Code Enactment (I) 2019 on Friday was solely because they exceeded the jurisdiction granted to the state legislative body (DUN), according to the Department of Syariah Judiciary Malaysia (JKSM).
However, it said that actions contrary to Islamic law still constitute an offence under Syariah law.
"The same offence can still be enforced under relevant laws such as sodomy under the Penal Code and halal under the Trade Descriptions Act.
"This decision can also be described as strengthening the Islamic law in Malaysia when the Federal Court in its judgement stated that the takzir punishment found in the Syariah Court is in line with the Penal Code in the civil court, and the indication is that there has been harmonisation between civil and Syariah law,” it said in a statement today.
It said that the decision also meant that the DUN had a role to play in ensuring that every enactment enacted did not exceed the powers it had before a provision was enacted.
On Friday (Feb 9), the Federal Court, in an 8-1 majority decision, ruled that 16 provisions of offences under the Kelantan Syariah Criminal Code Enactment (I) 2019, were null and void, on the grounds that the State Legislature did not have the power to enact laws on said offences, because there were federal laws covering the same offences.
The Federal Court made the ruling after allowing a petition, filed by Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Abdul Rahman, to challenge the constitutionality and legality of 18 provisions of offences under the enactment.
Meanwhile, JKSM also denied claims that offences such as ‘khalwat’ and drinking alcohol are not included in the category of offences declared by the court as invalid and void.
“For the offence of ‘sumbang mahram’, when the court declares it invalid and void, it does not mean that it is no longer an offence for Muslims in Kelantan, it is invalid because the law has been provided for in the Penal Code, which is a federal law“.
If a Muslim in the state of Kelantan commits sumbang mahram, the offence can be tried in a civil court.
"In fact, the punishment provided in the Penal Code is also higher, compared to the punishment provided in the Kelantan Syariah Criminal Code Enactment,” said the statement.
JKSM explained that the court's decision in the case of Nik Elin Zurina only involved the jurisdiction of the federal and state governments to legislate for offences and it did not mean that Muslims in Kelantan could not be punished for committing the offences.
"It just cannot be tried in the Syariah Court, but it can be tried in the civil court.
“For instance, the offence of ‘muncikari’, if a Muslim and a non-Muslim are accused of working together (in a crime), they can be jointly brought to trial in a civil court.
Compared to if the offence is tried in the Syariah Court, only Muslims can be charged in the Syariah Court. Non-Muslims are not subject to the jurisdiction of the Syariah Court," according to JKSM. – Bernama, February 11, 2024
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