PUTRAJAYA: The Federal Court has set Feb 9 to deliver its ruling over whether the Kelantan state assembly was empowered by law to enact 18 criminal offences under a 2019 state shariah enactment.
The decision date was communicated in a recent letter from the court to the lawyers of all parties in the case. The letter said the court will hand down its verdict at 9am.
On Nov 20 last year, a panel of nine judges led by Chief Justice Tengku Maimun Tuan Mat reserved the court’s decision over whether the state was empowered by the Federal Constitution to legislate the offences which are set out in the Kelantan Syariah Criminal Code (I) Enactment 2019.
Prior to that, the apex court had on Aug 17, 2023 heard arguments put forward on behalf of the applicants – lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Nastasha Tengku Abdul Rahman – and the Kelantan government.
Nik Elin and Tengku Yasmin contend that the 18 offences are invalid as federal laws already cover the same offences and thus, they want them declared null and void.
At the hearing, the duo’s lawyer Malik Imtiaz Sarwar told the apex court the 18 offences are already contained in 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, the Anti-Terrorism Financing and Proceeds of Unlawful Activities Act, and the Trade Descriptions Act.
He said it would be “discriminatory” for Muslims in the state to be subjected to two sets of punishments – under federal law and the state enactment.
Malik also said Muslims charged in Kelantan under the enactment would not have the opportunity to call non-Muslim witnesses as part of their defence.
He said there would be discrimination between Muslims and non-Muslims as the offences are part of both federal and state laws.
In addition, Malik said the power to legislate criminal matters belongs exclusively to Parliament, and that state assemblies can only enact laws which relate to the Islamic faith.
Lawyer Kamaruzaman Arif, representing the Kelantan government, argued that Nik Elin and Tengku 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 since they have not been charged under the state enactment which came into force in 2021.
The apex court also heard submissions from the Federal Territories Islamic Religious Council (MAIWP), the Perak Islamic Religious and Malay Customs Council (MAIPk), the Kelantan Islamic Religious Council (MAIK), the Muslim Lawyers Association Malaysia, the Malaysian Bar, and rights group Sisters in Islam.
Sitting with the chief justice on the panel 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. - FMT
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