A Kelantan family has succeeded in their Federal Court bid to nullify the validity of the state's 16 syariah criminal provisions.
A nine-person bench chaired by Chief Justice Tengku Maimun Tuan Mat in an 8-1 split majority decision allowed lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman’s petition.
The family was challenging the constitutionality of 18 provisions in Kelantan’s Syariah Criminal Code (I) Enactment 2019.
However, the apex court only allowed 16 out of the 18 to be invalidated.
Among the invalidated provisions are destroying a place of worship (Section 11), sodomy (Section 14), necrophiliac sexual intercourse (Section 16), bestiality (Section 17), and sexual harassment (Section 31).
Other struck down controversial Kelantan syariah criminal offences are possessing false documents and giving false information (Section 34), intoxication (Section 36), reducing scale measurement (Section 39), transactions that go against hukum syarak (Section 40), carrying out transactions involving usury (Section 41), and abuse of halal label (Section 42).
The remainder of subject matters criminalised under religious law by the state legislature are offering or providing vice service (Section 43), preparing to offer or provide vice service (Section 44), preparing to indulge in vice (Section 45), incest (Section 47), and muncikari or person acting as an intermediary between two people for certain offences (Section 48).
The provisions the Federal Court did not allow in the duo’s bid to nullify are giving away a child to a non-Muslim or morally corrupt Muslim (Section 13), and words that break the peace (Section 30).
‘Limited power’
Tengku Maimun today ruled that Kelantan's legislature exceeded its state-making power contained in the State List (List II) of the Ninth Schedule of the Federal Constitution.
She reminded that what the family was challenging was not the position of Islam and the syariah judicial system in Malaysia, but rather the constitutional validity of the specific 18 provisions of the state which the petitioners contended breached the limit of state-making power.
"The power of Parliament and state legislatures are limited by the Federal Constitution, and they cannot make any laws they like," Tengku Maimun said on behalf of the majority verdict.
Besides Tengku Maimun, the majority ruling encompassed seven members of the bench - Court of Appeal president Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Mohamad Zabidin Mohd Diah, and Federal Court judges Nallini Pathmanathan, Mary Lim Thiam Suan, Harmindar Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais.
Chief Judge of Sabah and Sarawak Abdul Rahman Sebli was the sole dissenting ruling.
He ruled, among others, that the family has no locus standi (legal standing) to challenge the validity of the Kelantan syariah criminal provisions.
‘Petition doomed to fail’
Rahman pointed out that Nik Elin and Yasmin did not demonstrate how the Kelantan syariah criminal provisions violated their constitutional rights.
"Their grievance was purely on legal and constitutionality of the state provisions, their constitutional question arising from no other than the existence of the provisions.
"The petition is doomed to fail in any event. None of the grounds (listed in the challenge) raised (showed) any real controversy between them and the Kelantan government or how they are adversely affected by the provisions," Rahman said.
He pointed out that mere fear factor alone was not enough for this challenge, and that they must show how their fundamental rights have been negatively affected by the Kelantan laws.
"We all fear something in our lives, but when it comes to the challenge against the state legislature, there needs to be infringement of private rights," Rahman said.
He added that it was important for the judiciary to ensure only petitioners with locus standi be allowed to proceed with their challenge to prevent “busybodies, cranks and other mischief makers” from abusing the legal process. - Mkini
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