KUALA LUMPUR, Feb 10 — Sisters in Islam (SIS) today praised the Federal Court’s decision to strike down 16 out of 18 provisions under the Kelantan Shariah criminal enactment as unconstitutional.
The ruling yesterday stated that the Kelantan State Legislature lacked the authority to enact laws on these offenses, as similar matters are already covered by federal laws.
In the statement, SIS condemned PAS secretary-general Datuk Seri Takiyuddin Hassan for labelling the verdict as “Black Friday” for Shariah laws.
“The assertion made by Datuk Seri Takiyuddin bin Hassan characterising the ruling as “Black Friday” for Islamic Shariah law is misleading and detrimental to the nation. Such statements, particularly from legal professionals, propagate a narrative of religious exploitation for political gain.
“Let us all celebrate this momentous day as the Federal Constitution stands strong! Contrary to Datuk Seri Takiyuddin’s “Black Friday” statement, this is indeed a Jalur Gemilang day! Let us not forget the very foundations our nation was built on by our forefathers,” SIS said.
The group said that the Federal Court’s commendable invalidation of 16 provisions within the 2019 Kelantan Shariah Criminal Code, deemed unconstitutional, highlights the necessity of adherence to the Federal Constitution by state legislative assemblies.
SIS said that the 8-1 majority decision reaffirms the universal application of laws, ensuring equality for all Malaysians, irrespective of religious or ethnic background.
Chief Justice Tun Tengku Maimun Tuan Mat, who led a nine-member panel of judges, delivered the majority verdict of 8-1 in the constitutional challenge filed by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Nastasha Abdul Rahman.
“This case serves as a reminder of the dangers of instilling fear and mistrust within communities under the guise of religious freedoms. The issue at hand pertains to state legislators overstepping their jurisdiction, not a threat to Islamic principles.
“Claims suggesting a threat to other states’ Shariah laws are unfounded; rather, the ruling highlights the necessity of respecting constitutional principles.
“Moving forward, it is crucial for all parties to respect the Federal Court’s decision and refrain from politicising the matter. Efforts should focus on fostering unity and understanding among Malaysians, transcending religious and ethnic divides. It is imperative that individuals and groups refrain from spreading hate and inciting violence and must be reminded that any form of violence or threats constitutes a crime and undermines the fabric of our society,” SIS added.
Nik Elin, a native of Kelantan, along with her daughter, filed a petition directly with the Federal Court under Article 4(4) of the Federal Constitution, naming the Kelantan government as the sole respondent in this case.
The duo had challenged the constitutionality and validity of 18 provisions under the Kelantan Shariah Criminal Code (left) Enactment 2019, claiming that the Kelantan State Legislature does not have the power to enact laws on these offences because there are federal laws covering the same.
Through the court challenge, the two women sought the Federal Court to declare that 18 provisions of Kelantan’s Shariah Criminal Code (I) Enactment 2019 are invalid, arguing that the Kelantan state legislative assembly had overstepped its powers or had no powers to make such laws.
Under the Federal Constitution’s Ninth Schedule, there are two different lists that say what the federal government — via Parliament — has powers to make laws on, and what the state governments — via their state legislative assemblies — have powers to make laws on.
List I is the Federal List which states what Parliament can make laws on, while List II or the State List provides a separate and shorter list of what state governments can make laws on.
The initial 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 Shariah code 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).
The 20 impugned provisions were later reduced to 18 provisions after Section 5 and Section 37(a) were dropped from the petition hearing as disclosed by lawyers representing Nik Elin.
In yesterday’s ruling, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli was the only judge who dissented or disagreed with the majority.
Other judges on the nine-member panel are President of the Court of Appeal Tan Sri Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah; Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais.
