Judiciary explains Islamic councils allowed to join challenge on Kelantan's 20 Shariah offences, says lawyer's FB post inaccurate

KUALA LUMPUR, Aug 11 — Malaysia’s judiciary today clarified that two Islamic religious councils were allowed to participate as “amicus curiae” or friends of the court in the Federal Court’s August 17 hearing of two Malaysian Muslims’ constitutional challenge to 20 Shariah offences under the Kelantan state law.

In a statement by the Chief Registrar’s Office of the Federal Court of Malaysia, the office put the record straight as it responded to an “inaccurate” Facebook posting by Facebook user “Lukman Sheriff” — an account owned by lawyer Lukman Sheriff Alias.

In Lukman Sheriff’s Facebook post yesterday, the lawyer had claimed that Sisters in Islam (SIS) had so far obtained amicus curiae status in the case which would enable them to present their views, while also claiming that the Malaysian Muslims Lawyers Association (PPMM) and the Badan Peguam Syarie Wilayah Persekutuan (Federal Territories’ Sharie lawyers’ legal profession body) were allegedly not able to be amicus curiae and would only be on watching brief and also stating that the status of other bodies’ application had yet to be determined.

But the judiciary via the Chief Registrar’s Office said Lukman Sheriff’s Facebook post was “inaccurate and trying to confuse the public”.

Referring to the court’s records for that Federal Court case on Kelantan’s 20 Shariah offences, the judiciary said that there are actually three entities that were allowed by the court to be amicus curiae, namely SIS, Kelantan Islamic Religious and Malay Customs Council (Maik) and the Federal Territories Islamic Religious Council (Maiwp).

The judiciary pointed out that SIS had as early as April 20, 2023 applied to the court to be amicus curiae, while PPMM and the Badan Peguam Syarie Wilayah Persekutuan had only applied on August 4 and August 7 — which the judiciary noted was filed less than two weeks from the August 17 hearing date.

This is despite the Federal Court having scheduled the hearing date of August 17 much earlier.

When contacted by Malay Mail today, the two Malaysians' lawyer Surendra Ananth said the Federal Court had on May 11, 2023 fixed the hearing date of August 17. Malay Mail's checks show that the case has been in news reports since late 2022.

The Chief Registrar's Office also said those allowed to hold a watching brief in the Federal Court’s proceedings for that case are: PPMM, the Badan Peguam Syarie Wilayah Persekutuan, the Shariah Lawyers Association of Malaysia (PGSM), the Perlis Islamic Religious and Malay Customs Council (MAIPs), and the Malaysian Bar.

“This office views seriously the actions of certain quarters who issue statements that can confuse the public and asks the public to be more careful in sharing inaccurate reports or postings on social media,” the judiciary said via the Chief Registrar’s Office.

On May 25, 2022, Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed the constitutional challenge directly at the Federal Court via Article 4(4) of the Federal Constitution, and named the Kelantan state government as the sole respondent.

Under Article 4(4), the validity of any laws made by Parliament or a state legislature can be questioned in court, based on reasons that Parliament or a state legislature did not have powers to make those laws. For such constitutional challenges under the Article 4(4) route, it can only start if a Federal Court judge grants leave or permission.

On September 30, 2022, the Federal Court allowed the two women to start their constitutional challenge.

This means that the two women have cleared the first hurdle, and that a panel of Federal Court judges will be hearing and deciding whether the Kelantan state government had the power to make the state law on the 20 Shariah offences.

The Federal Court will be hearing the two women’s constitutional challenge on August 17. Generally, the courts do not have to deliver their decisions on the same day as a court hearing, and can deliver decisions at a later date.

When asked by Malay Mail today for other updates on the case, Surendra said the Kelantan state government had applied to set aside the Federal Court's September 30, 2022 leave order. Based on court documents, the Kelantan state government had only on August 2, 2023 filed the application to set aside leave.

Surendra told Malay Mail that the Federal Court is scheduled to deal with Kelantan's application to set aside the leave order in a case management on August 14, while the hearing on the two women's constitutional challenge is still scheduled for August 17, 2023.

Surendra confirmed today that the Kelantan Islamic Religious Affairs Department (Jaheaik) has applied to be an intervener or be made a party to this court case, and that no date has been scheduled yet for this matter. Based on court documents, Jaheaik had filed the intervener application on August 9, 2023.

What is the Federal Court case about?

The two women’s challenge ultimately argues that the Kelantan state legislative assembly did not have the powers to create these 20 Shariah provisions in a state law, as it is the federal government instead which holds the powers under the Federal Constitution to make laws on such crimes.

Through the court challenge, the two women are seeking for the Federal Court to declare that 20 provisions of Kelantan’s Syariah Criminal Code (I) Enactment 2019 are invalid and null and void, as the Kelantan state legislature has no powers to make laws on these matters.

In an affidavit filed previously in court, Nik Elin Zurina stated a detailed list that showed that all of the 20 challenged provisions in the Kelantan state law had actually already been covered in multiple federal laws made by Parliament such as the Penal Code, anti-human trafficking laws, gambling-related laws, the Dangerous Drugs Act, and laws on misleading food labels.

Kelantan’s Syariah Criminal Code (I) Enactment 2019 was gazetted on December 31, 2020 and lists more than 50 offences, and is said to have come into force on November 1, 2021.

The women’s court challenge is not about religion or going against any religious authority, but is instead on whether it is the federal government or the state government which has powers under the Federal Constitution to make laws on the offences covered in the 20 provisions.

The question in this court case is whether the Kelantan state legislative assembly overstepped its limited scope of powers under the Federal Constitution to make laws, and which means such laws would be invalid or have no legal effect.

Read here to know more about the case.