PUTRAJAYA – A nine-man Federal Court bench today heard a legal challenge brought by a lawyer and her daughter who want the court to declare 20 shariah criminal offences, which were enacted by the Kelantan assembly, as unconstitutional.
The offences in the Kelantan Shariah Criminal Code (I) Enactment 2019 that Nik Elin Zurina Abdul Rashid and Tengku Yasmin Nastasha Tengku Abdul Rahman are challenging were offences of false claim, destroying and defiling places of worship, selling or giving away child to non-Muslim or morally reprehensible Muslim, sexual intercourse with corpse, sodomy, sexual harassment, possessing false document, giving false evidence, consuming anything intoxicating, gambling, reducing scale, measurement and weight.
The other offences are executing transactions contrary to Hukum Syarak and executing transactions via ursury, abuse of halal label and connotation, offering or providing vice services, preparatory act of offering or providing vice services, preparator act of vice, act of incest and middleman acting to solicit vice activities.
In the proceedings today, their lawyer Datuk Malik Imtiaz Sarwar submitted that the Kelantan assembly did not have the power to enact laws on those offences as there are federal laws covering the same offences.
He said the Kelantan assembly could not make shariah criminal offences on subjects that fall under the definition of public concern relating to peace, order, security, morality, health as those are offences that fall under “criminal law” which come under the federal government’s law-making powers.
“The power of the legislature of the state of Kelantan to enact offences against the precepts of Islam are limited to only the ‘private aspect’ of the religion,” Malik said.
At the onset of the hearing, Chief Justice Tun Tengku Maimun Tuan Mat who chaired the bench said the court agreed with Malik that the case before the court has nothing to do with the doctrine of Islam but rather concern with the interpretation of words in the federal constitution.
“There is no intention on the part of the petitioners (Nik Elin and Nastasha) or the court to undermine the position of the Islamic religion,” she said.
The court, earlier, dismissed an application by Kelantan Islamic Affairs and Religious Department (Jaheaik) to intervene in the case.
The other judges presiding on the bench were Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli 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 court also heard submissions from lawyer Datuk Kamaruzaman Muhamad Arif who appeared for the Kelantan government, who argued that shariah law can co-exist with secular law. He said the provisions that were challenged by the lawyer and her daughter were constitutional and legally enforced.
He asked the court to revisit the Iki Putra Mubarrak case as he said the Federal Court had wrongly decided on the matter.
Meanwhile, lawyer Yusfarizal Yusoff who held a watching brief for the Terengganu Islamic Religious and Malay Customs Council (Maidam) told the court that Nik Elin and her daughter did not have the locus standi (legal standing) to bring the challenge as they have not been aggrieved by any of the laws and her challenge on the constitutionality of those laws was premature.
The duo were given the nod by the then Federal Court judge Datuk Vernon Ong Lam Kiat (now retired) to commence their constitutional challenge on September 30, last year. They had named the Kelantan government as respondent in their petition.
Justice Tengku Maimun then adjourned the hearing of the case to another day to be fixed later.
Sisters in Islam, the Kelantan Islamic Religious and Malay Customs Council and the Federal Territory Islamic Council were allowed to come in as amicus curiae (friend of the court) while several lawyers held watching brief for Maidam, Federal Territory Syarie Lawyers Association, Malaysian Bar, the Malaysia Syarie Lawyers Association, Muslim Lawyers Association, Negeri Sembilan Islamic Religious Council, Perak Islamic Religious Council, Malacca Islamic Council, Sabah Islamic Religious Council and Perlis Islamic Religious and Malay Customs Council. – Bernama, August 17, 2023
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