Civil groups say Islam isn’t under threat in Nik Elin case, Shariah laws must follow same law-making process

PUTRAJAYA, Aug 18 — All laws, including state Shariah laws, are subjected to the same law-making process, several civil groups have said following claims that Islam is under threat by a recent review of Kelantan’s provisions.

The groups said the law-making process includes proposing the laws through a Bill at the state assembly which is then followed by three readings before they are passed and submitted for royal assent.

“Article 4(4) of the Federal Constitution allows the validity of a law to be questioned based on Parliament or a state legislature’s competency to enact a law in court through a judicial review application,” they said.

The groups — Justice for Sisters, Centre for Independent Journalism, Sisters in Islam, Freedom Film Network, Association of Women Lawyers and Kemban Kolektif — said the Nik Elin Zurina Nik Abdul Rashid vs Kelantan case is not challenging the practice of the Islamic faith in Malaysia.

“Instead, they are challenging the constitutionality and validity of state Shariah laws that were enacted by the Kelantan Legislative Assembly,” they said.

Yesterday, a panel of nine Federal Court judges heard the constitutional review of 20 provisions in the Kelantan Shariah Criminal Code 2019 Enactment as part of the proceedings for the case.

The Federal Court emphasised that there was no dispute arising over Islam as the official religion of the Federation in the hearing.

The groups said the case is similar to the Iki Putra vs Selangor State Government case in which Kelantanese lawyer Nik Elin’s challenge was to affirm federal and state legislative competency and establish a clear legislative jurisdiction.

“The case has received negative attention from conservative groups claiming that a win for Nik Elin would jeopardise the religion of Islam in Malaysia,” they said.

They said the petitioners of the case were not challenging the practice of the Islamic faith in Malaysia.

“It is our duty to protect the supremacy of the Federal Constitution,” Nik Elin said.

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 the 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.

Through the court challenge, the two women are seeking for the Federal Court to declare that 20 provisions of Kelantan’s Shariah 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.

The 20 provisions cover various Shariah offences listed by the Kelantan state legislature, including Sections 5 (false claim); 11 (destroying or defiling place of worship); 13 (selling or giving away child to non-Muslim or morally reprehensible Muslim); 14, 16 and 17 (sodomy, sexual intercourse with corpse, sexual intercourse with non-human); 30 (words capable of breaking peace); and 31 (sexual harassment).

The rest of the 20 provisions are Sections 34 (possessing false document, giving false evidence, information or statement), 36 (anything intoxicating), 37 (gambling), 39 (reducing scale, measurement and weight), 40 and 41 (executing transactions contrary to hukum syarak and executing transactions via usury), 42 (abuse of halal label and connotation), 43, 44, 45, 48 (offering or providing vice services, preparatory act of offering or providing vice services, preparatory act of vice and “muncikari” otherwise known as a person acting as an intermediary between a woman and man or between the same gender for certain offences) and 47 (act of incest).

Of the 20 provisions under review, 13 are recent, having only come into force in November 2021.