Nik Elin Zurina bt Nik Abdul Rashid & Anor v. Kerajaan Negeri Kelantan, 2 MLJ 140 is a landmark decision of the Federal Court of Malaysia in which the court in a 8-1 judgement held that the Kelantan State Legislative Assembly did not have the power to enact 16 Sharia laws pertaining to criminal matters, which were deemed null, void and unconstitutional. The Federal Court followed its decision in Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor, 2 MLJ 323, another case which laid out the emphasis of federalism and the division between state and federal powers, that the State Legislative Assembly can only make laws on matters enumerated in the State List (List II) of the Federal Constitution of Malaysia (following the doctrine of ultra vires).
Background
This case stems from a long-standing and ongoing conflict between the legislative and judiciary regarding the implementation of the Islamic Sharia system and the secular civil laws in Malaysia. Following the amendment to the Federal Constitution after the 1988 Malaysian constitutional crisis, which introduced Article 121(1A) to the constitution to demarcate the power and jurisdiction of the civil courts and the Syariah Courts, several cases were filed to challenge the status of the Syariah Courts' jurisdiction. However, in 2021, the Federal Court of Malaysia, in the case of Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor, 3 MLRA 384 held that section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, a Selangor Sharia criminal law pertaining to liwat (sodomy) was null, void and unconstitutional on the ground that the Selangor State Legislative Assembly had encroached on and contravened the Parliament's power to enact criminal laws under Articles 74(3), 75 and 77 and the Federal Constitution (in which case, section 377A of the Penal Code of Malaysia).
Nik Elin Zurina binti Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha binti Tengku Abdul Rahman, filed petitions on 25 May 2022 to seek a declaration from the Federal Court that 18 provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019 were invalid on the ground that they provided for matters with respect to which the Kelantan State Legislative Assembly had no power to make laws and that the provisions were accordingly void and ultra vires under article 4(1) of the Federal Constitution. Initially, 20 provisions were challenged on their constitutionality; however, the petitioners withdrew their challenges on sections 5 (false claim) and 37(1)(a) (gambling) of the Kelantan Syariah Criminal Code (I) Enactment 2019, leaving only 18 provisions challenged as follows: Section 11 – Destroying or defiling a place of worship Section 13 – Selling or giving away child to non-Muslim or morally reprehensible Muslim Section 14 – Sodomy Section 16 – Sexual intercourse with corpse Section 17 – Sexual intercourse with non-human Section 30 – Words capable of breaking peace Section 31 – Sexual harassment Section 34 – Possessing false document, giving false evidence, information or statement Section 36 – Anything intoxicating Section 39 – Reducing scale, measurement and weight Section 40 – Executing transactions contrary to hukum syarak Section 41 – Executing transactions via usury Section 42 – Abuse of halal label and connotation; Section 43 – Offering or providing vice services, Section 44 – Preparatory act of offering or providing vice services Section 45 – Preparatory act of vice Section 47 – Act of incest Section 48 – Muncikari (pimping, procuring prostitution)
The Federal Court of Malaysia, presided over by former Federal Court judge, Datuk Vernon Ong Lam Kiat, granted leave to the petitioners for their case to be heard fully on the ground that the petitioners had the competency and locus standi to bring an action to challenge the constitutionality and validity of the 18 provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019.
Decision
The case was heard by a full bench, empanelled by the Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, the President of the Court of Appeal, Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim, Chief Judge of the High Court of Malaya, Tan Sri Dato' Mohamad Zabidin bin Mohd Diah, Chief Judge of the High Court of Sabah and Sarawak, Tan Sri Dato' Abdul Rahman bin Sebli and five other Federal Court judges, Justices Tan Sri Datuk Nallini Pathmanathan, Dato' Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Dato' Nordin bin Hassan and Dato' Abu Bakar bin Jais.
Majority judgement
The Federal Court of Malaysia issued its decision on 9 February 2024. In an 8-1 judgement, the Court held that the 16 provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019 (save for sections 13 and 30) were deemed void and null on the ground that those impugned provisions were ultra vires, that the State had no power to enact laws on criminal matters which fall under matters conferred in the Federal List of the Federal Constitution (List I). This principle was established by the Federal Court in Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor, 2 MLJ 323, which affirmed the doctrine of ultra vires and the doctrine of pith and substance.
The majority judgement was written by Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat and joined by President of the Court of Appeal, Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim, Chief Judge of the High Court of Malaya, Tan Sri Dato' Mohamad Zabidin bin Mohd Diah, and Justices Tan Sri Datuk Nallini Pathmanathan, Dato' Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Dato' Nordin bin Hassan and Dato' Abu Bakar bin Jais.
Judicial independence and public controversy In the majority judgement, before proceeding to the main issues raised in the petition, Chief Justice Tun Tengku Maimun Tuan Mat noted that the Judiciary's decisions in the present case and the Iki Putra Mubarrak case have been called into question based on erroneous and politically-fuelled sentiments by certain parties outside the court.
The Chief Justice specifically mentioned Yusfarizal Yussoff as one of such example. Yusfarizal Yussoff, a PAS member since 2023 and a lawyer representing the Kelantan Islamic Religious Affairs Department as a amicus curiae in the present case, has previously contended that the present case and Iki Putra Mubarrak are undermining the position of Islam and will put an end to the Shariah court system in this country. He also further claimed that the Islamic law and Shariah courts in Malaysia will be "buried with a tombstone placed on top at anytime" (if the court ruled in favours of the petitioners), as noted by the Chief Justice in the summary of judgement.
The Federal Court vehemently rejected Yusfarizal's contention, and even criticised him that he is misleading the public and that he "should think before he speaks", as the Federal Constitution has given all State Governments in this country the legislative powers to enact Islamic law, provided it is enacted within the constitutional boundaries, therefore the allegations brought forward by Yusfarizal are simply untrue.
Chief Justice Tun Tengku Maimun Tuan Mat emphasised that the present case before the court is not about the position of Islamic laws or the Shariah court, but about whether the Kelantan State Legislative Assembly is constitutionally empowered to enact the impugned provisions. Or in other words, which is the correct legislative bodies to enact the impugned provisions, the Parliament or the Kelantan Assembly?
Constitutionality
In addressing the constitutionality of the 18 provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019, Chief Justice Tun Tengku Maimun binti Tuan Mat highlighted the aspects of matters falling under the precepts of Islam, purely religious offences and general criminal laws, holding that many criminal law offences such as theft, robbery, rape and corruption would naturally encompass and are caught by the precepts of Islam. However, as these offences fall within the general purview of criminal law, only the Federal Parliament has the power to enact such laws to the exclusion of the State Legislatures as this general system is dictated by the Federal Constitution, specifically the separation of legislative powers between the Federal Legislature (Parliament) and the State Legislatures.
The Right Honourable Chief Justice also remarked that the placement of Islamic law including the powers to create and punish offences against the precepts of Islam, except with regard to matters in the Federal List (List I) of the Federal Constitution, in item 1 of the State List of the Federal Constitution, was done to preserve the sanctity of the religion of Islam and to ensure its continuous survival in the country's legal system. Hence, the inclusion of article 121(1A) of the Federal Constitution was a celebrated act to preserve the substantive validity and integrity of the Syariah Courts.
Chief Justice Tun Tengku Maimun binti Tuan Mat defined the first category, which is in regards to the 'precepts of Islam' as offences that can be created and punished under item 1 of the State List of the Federal Constitution, which is specific and includes any matter included in the specific entries of item 1 of the State List or any other applicable provision of the Federal Constitution including article 11(4) of the Federal Constitution, which emphasises the power of Parliament and State Legislative Assemblies to restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
Item 1 of the State List provides in part the power of the States to enact laws with respect to Islamic law relating to testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trust. Since these laws are only applicable to persons professing the religion of Islam and are enacted on the basis of them complying with Islamic law, such laws will encompass the precepts of Islam. If any offence is enacted by the State Legislative Assemblies for the creation and punishment of offences against the 'precepts of Islam' by reference to any of the expressly stated entries in item 1 of the State List, it cannot possibly fall within the Federal List, which focuses on matters which Parliament can enact. The preclusion clause in the State List cannot therefore apply in such cases.
Chief Justice Tun Tengku Maimun binti Tuan Mat further propounded the second category, which is in respect to [criminal] matters which are purely religious in nature, as a more open-ended definition of anything that can possibly be an offence in religion of Islam and its laws that is not otherwise directly referenced to any of the express entries in item 1 of the State List of the Federal Constitution. The Right Honourable Chief Justice provided that importance must be heeded to the definition of 'criminal law' as the phrase is too broad and nebulous to be accorded a set definition in the context of the Federal Constitution that can stand the test of time.
The first category of 'criminal law' refers to the power of Parliament to create and punish any offences with respect to any of the entries included in the Federal List in the Federal Constitution. As such, if the Federal List empowers Parliament to make a law on any given subject matter, then the creation of any offences or punishments in relation to that subject matter must be deemed to be a part of 'criminal law'.