By Ho Kit Yen | Free Malaysia Today
The Federal Court has reserved its ruling on a mother and daughter’s constitutional challenge over the competency of the Kelantan state assembly in enacting 18 provisions contained in the Kelantan Syariah Criminal Code (I) Enactment 2019.
Chief Justice Tengku Maimun Tuan Mat, who led a panel of nine judges, reserved the court’s decision after hearing submissions from the Federal Territories Islamic religious department (MAIWP), the Perak Islamic Religious Council and Malay Customs (MAIPK), the Kelantan Islamic Religious Council (MAIK), the Muslim Lawyers Association Malaysia, the Malaysian Bar, and rights group Sisters in Islam (SIS).
The other judges who sat with Tengku Maimun were Court of Appeal president Abang Iskandar Abang Hashim, Chief Judge of Malaya Zabidin Diah, Chief Judge of Sabah and Sarawak Rahman Sebli, and Justices Nallini Pathmanathan, Mary Lim, Harmindar Singh Dhaliwal, Nordin Hassan, and Abu Bakar Jais.
The court had on Aug 17 heard arguments from lawyers appearing for Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman, as well as the Kelantan government.
Lawyers Rafique Rashid Ali, Adham Jamalullail Ibrahim, Arham Rahimy Hariri and Haniff Khatri Abdulla, representing the religious councils and the Muslim lawyers’ group, told the court today they were objecting to the duo’s constitutional challenge.
They said the state assembly is empowered to enact the provisions in question.
Lawyers Edmund Bon and Fahri Azzat, appearing for Bar and SIS, told the court they supported Elin’s petition and argued that the state assembly has no power to enact the 18 provisions.
Appearing for Nik Elin and Tengku Yasmin during the last hearing, lawyer Malik Imtiaz Sarwar told the apex court it would be “discriminatory” for Muslims in the state to be subjected to two sets of punishments – under federal laws and the state enactment.
He said the 18 offences under the Kelantan Syariah Criminal Code (I) Enactment have already been covered under the Penal Code, the Communications and Multimedia Act, the Child Act, the Employment Act, the Anti-Sexual Harassment Act, the Dangerous Drugs Act, the Common Gaming Houses Act, the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act, and the Trade Descriptions Act.
Malik said that if a Muslim is charged in Kelantan under the enactment, they would not have the opportunity to call non-Muslim witnesses for their defence.
The lawyer cited a previous Federal Court ruling involving a constitutional challenge against the Selangor enactment that criminalised sodomy.
He said the apex court held that “there will be discrimination between Muslims and non-Muslims if the same subject matter is legislated on under federal and state laws”.
Lawyer Kamaruzaman Arif, representing the Kelantan government, argued that Elin and Yasmin have no legal standing to commence the constitutional challenge.
He said they were merely “busybodies” as they failed to show the actual risk they might suffer under the implementation of the Syariah Criminal Code (I) Enactment.
Kamaruzaman also said Elin and Yasmin were never charged under the shariah enactment since it came into force in 2021.
Elin and Yasmin contend that the 18 provisions are invalid as federal laws cover the same offences.
They also say the power to legislate criminal matters belongs exclusively to Parliament and that state assemblies can only enact laws related to the Islamic faith.
They want the court to declare the provisions null and void.