By Hafiz Yatim | The Edge Malaysia
While a nine-member Federal Court bench deferred decision on a challenge mounted by two women over 18 Kelantan shariah criminal provisions, Chief Justice Tun Tengku Maimun Tuan Mat reminded lawyers to refrain from making comments that would create uneasiness among the public or distort events.
Tengku Maimun issued this reminder as lawyers for the plaintiffs, Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman, informed the court about a statement made by lawyer Mohd Yusfarizal Yussoff, representing the Terengganu Islamic Religion and Malay Customs Council.
Nik Elin complained to the court that Yusfarizal was quoted to have said two months ago that it was crucial for one to understand the challenge of the powers of the shariah court, before it becomes buried like a batu nisan (tombstone).
Yusfarizal, when asked by Tengku Maimun if indeed he had made the statement, replied that he would have to check on the recording before he could respond.
Tengku Maimun said the hearing was not about undermining the position of Islam or the shariah courts in the country.
“The issue arising out of the petition is simply about the competency of the Kelantan State Legislative Assembly to enact impugned provisions.
“Subject to whatever reply Yusfarizal wishes to make to this, we would like to remind lawyers that you are bound by the ethics of your profession and you know very well that it is not appropriate to discuss pending cases at a public forum, more so when you [have] failed to disclose the full facts of the case,” she said.
A 1,000-strong crowd had gathered outside the Palace of Justice in anticipation of a decision.
18 provisions being challenged
Nik Elin initially set out to challenge 20 Kelantan shariah offences which had been passed by the state legislature, as lawyers Datuk Malik Imtiaz Sarwar, Surendra Ananth, and Yvonne Lim contended it is the federal government which holds the power, under the Federal Constitution, to create laws on such crimes.
However, she and her daughter have since dropped two of the provisions related to gambling and making false claims.
Nik Elin is challenging laws stipulated in the Kelantan’s Syariah Criminal Code (I) Enactment 2019 including destroying or defiling a place of worship (section 11), selling or giving away a child to non-Muslim or morally reprehensible Muslims (section 13), sodomy (section 14), sexual intercourse with a corpse (section 16).
Other provisions are sexual intercourse with a non-human (section 17), words capable of breaking place (section 30), sexual harassment (section 31), consuming anything intoxicating (section 36), gambling (section 37), reducing scale, measurement and weight (section 39).
The duo are also challenging execution of transactions contrary to hukum syarak (section 40), executions of transactions via usury (section 41), abuse of the halal label and connotations (section 42), offering or provision of vice services (section 43), preparatory act of offering or provision of vice services (section 44), preparatory act of vice (section 45), act of incest (section 47) and middleman acting to solicit vice activities (section 48).
The Malaysian Bar, represented by Edmund Bon, and Sisters in Islam’s counsel Fahri Azzat, supported the petition, while the Muslim Lawyers Association, along with the Federal Territory Islamic Council, Kelantan government, Perak Islamic Affairs, and Malay Culture Council opposed to it.
Various other Islamic religious councils were also present as amicus curiae (friends of court).
Lawyer Arham Rahimi Hariri, representing Kelantan religious councils, told the apex court bench that it does not have powers to grant a declaratory order on such legislations as null and void, but could only rule on their validity.
He cited provisions under the Federal Constitution that do not empower the apex court to declare nullification of state legislations.
Mohd Haniff Khatri Abdulla, appearing for the Muslim Lawyers Association, said the Federal Court’s decision in the Iki Putra case had widened the jurisdiction of the civil court’s position in nullifying a shariah law in Selangor, and that Nik Elin, as the petitioner, should show why her case does not fall under the ambit of shariah law.
“Here, we say that Nik Elin has failed to show why it does not come under the shariah law and hence this petition should be dismissed,” he said.
Haniff further called on the legislature to come up with better definitions on what it defines as criminal law to differentiate between civil criminal law and shariah criminal law.
Meanwhile, Adham Jamalulullail Ibrahim, lawyer for the Perak Islamic council and Malay Culture Council, cited the Kelantan sultanate, saying it was within its and the state’s purview to enact shariah law, as guaranteed by the British since the 1920s.
Malik, in reply, said he was fine with the court declaring laws challenged by his clients as invalid, pointing out that when a law is declared invalid, it is considered nullified.
He also said the federal government has a right to enact laws under the federal lists and the Kelantan government’s shariah law provisions had encroached on said lists. He also said that since Kelantan entered the federation, it is bound by provisions in the Federal Constitution.
Besides Tengku Maimun, the bench comprised Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Seblim, and Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan, and Datuk Abu Bakar Jais.
