G25 commends the Federal Court for its landmark judgment in petition no. BKA-2-05/2022(D) in declaring that several provisions or sections of the Kelantan Syariah Criminal Code (I) Enactment 2019 are null and void for being in violation of the Federal Constitution.
The judgment was delivered on Friday, 9 February.
G25 also applauds Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, for their courage and initiative in filing the petition and challenging the constitutionality of the several provisions of the enactment before the Federal Court pursuant to Article 4 of the Federal Constitution.
The petitioners named the state government of Kelantan as the respondent.
A panel of nine Federal Court judges sat to hear the petition.
Eight out of the nine judges ruled in favour of the petitioners. They were Chief Justice Tengku Maimun Tuan Mat, Court of Appeal President Abang Iskandar Abang Hashim, Chief Judge of Malaya Mohamad Zabidin Mohd Diah and federal judges Nallini Pathmanathan, Mary Lim Thiam Suan, Harminder Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais. Kudos to these honourable judges.
The Chief Judge of Sabah and Sarawak, Abdul Rahman Sebli, dissented.
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The two petitioners had challenged the constitutionality and legality of several provisions or sections of the Kelantan Syariah Criminal Code (1) Enactment 2019, contending that the Kelantan State Legislative Assembly does not have the power to legislate on these offences because they relate to matters that fall under the federal list of the 9th Schedule of the Federal Constitution – meaning that they relate to federal matters and only Parliament can legislate on such matters.
The provisions or sections that were declared null and void are:
- Offence of destroying or defiling a place of worship (Section 11)
- Offence of sodomy (Section 14)
- Offence of sexual intercourse with a corpse (Section 16)
- Offence of sexual intercourse with non-human (Section 17)
- Offence of sexual harassment (section 31)
- Offence of possessing false documents, giving false evidence, information or statement (Section 34)
- Offence of the use of intoxicating substances (Section 36)
- Offence of gambling (Section 37)
- Offences relating to scale, measurement and weight (Section 39)
- Offences relating to financial matters (Sections 40 and 41)
- Offence of abuse of the halal label (Section 42)
- Offences relating to solicitation of prostitution (Sections 43, 44, 45 and 48)
- Offence of incest (Section 47)
Make no mistake that the learned chief justice in her judgment had clearly said:
 The record must be set straight. The present case, contrary to erroneous and politically-fuelled suggestions, has absolutely nothing to do with undermining the religion of Islam. The allegation that any decision of this Court could destroy or even uphold Islamic law in this country is therefore not even remotely close to what the present petition actually entails.
Yet, in spite of what has been said by the chief justice in her judgment, G25 notes with grave concern that the Pas secretary general, Takiyuddin Hassan, addressing a large crowd outside the Palace of Justice after the Federal Court’s judgment, said that the Federal Court’s judgment was a “dark day in history for Muslims” in the country. He added that the decision would also threaten Sharia laws.
G25 views this as a highly provocative and dangerous statement, bordering on incitement.
Being a lawyer and a former minister for legal affairs under Mahiaddin Yasin’s administration, Takiyuddin should have known better. He ought to have advised the crowd to respect the judgment of the Federal Court and to take heed of the ruling, instead of taking the opportunity to make the judgment a political issue.
G25 fervently hopes that the Kelantan state government will take the Federal Court’s judgment in the right spirit and do what is needed to amend the state Syariah Criminal Code by deleting the impugned provisions so as to make the state enactment conform with the Federal Constitution.
The Federal Constitution is the supreme law of the nation. Every institution of government in the country, be it state or federal, must act in accordance with the Federal Constitution.
Courts are entrusted by law to interpret the Federal Constitution. Every institution and every citizen must respect and abide by the courts’ interpretation of the Federal Constitution. This is what the rule of law is all about.
The Kelantan state government should take a leaf from the state government of Negri Sembilan. When the Court of Appeal in the case of Mohd Juzaili Mohd Khamis v State of Negeri Sembilan  declared that Section 66 (prohibition of cross dressing for male Muslims) of the Syariah Criminal (Negeri Sembilan) Enactment 1992 was unconstitutional as being in contravention of the fundamental liberty provisions of the Federal Constitution, the Negeri Sembilan state government had the humility to abide by the Court of Appeal judgment: in 2019, they took the initiative to amend Section 66 accordingly, so as to make the provision conform with the Federal Constitution.
The Court of Appeal in Mohd Juzaili also held that, although Article 3(1) declares that Islam is the religion of the Federation, the practice of Islam in this country is governed by the provisions of the Federal Constitution – for Article 3(4) declares that “(4) Nothing in this Article derogates from any other provision of this Constitution.”
This means that when a state drafts an enactment pertaining to Islam, the state must ensure that the proposed enactment does not contravene, say, the provisions of the Federal Constitution pertaining to fundamental liberties.
We wish to stress here that our forefathers when drafting the Federal Constitution intended the Federation of Malaya (and later Malaysia) to be a secular state.
In the Supreme Court case of Che Omar Che Soh v PP , the Supreme Court took the position that it was the intention of the framers of our Federal Constitution that the word Islam in Article 3(1) be given a restrictive meaning.
The Federal Court’s judgment in Nik Elin‘s case should serve as a salutary reminder to state governments that, in passing state legislation, they should take pains to ensure that the intended legislation does not transgress the Federal Constitution.
It is imperative that state legal advisers must be persons knowledgeable in constitutional law, must always be vigilant when drafting laws for the states and must have the courage to advise the state governments that they are serving on about the division of legislative powers between the states and the federation and the limits of the states’ legislative powers. – G25 Malaysia