NIK ELIN ENTERS THE HISTORY BOOKS. FEDERAL COURT DECLARES 16 KELANTAN SYARIAH ENACTMENTS UNCONSTITUTIONAL

 

 
Friday, 09 Feb 2024  

Nik Elin Zurina Nik Abdul Rashid, a native of Kelantan, along with her daughter Tengku Yasmin Nastasha Abdul Rahman, filed a petition directly with the Federal Court under Article 4(4) of the Federal Constitution, naming the Kelantan government as the sole respondent in this case.

 NIK ELIN NIK RASHID

duo challenged constitutionality and validity of 18 provisions under Kelantan Syariah Criminal Code (l) Enactment 2019, claiming that the Kelantan State Legislature does not have the power to enact laws on these offences because there are federal laws covering the same.

The two women sought Federal Court to declare 18 provisions invalid, arguing that the Kelantan state legislative assembly had overstepped its powers or had no powers to make such laws.

Federal Court struck down 16 of 18 Kelantan Shariah enactments unconstitutional
Kelantan State Legislature does not have power to enact laws on said offences 
because there are federal laws covering the same
panel of 9 judges, majority verdict of 8-1 in constitutional challenge 

Chief Judge of Sabah Abdul Rahman Sebli only judge who dissented

Other judges on the nine-member panel are President of the Court of Appeal Tan Sri Amar Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah; Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais.

My Comments :

This ruling by the Federal Court means that ALL other  Syariah Criminal Code Enactments  in ALL the States in Malaysia which have the same characteristics as the Kelantan Syariah Enactments should also be unconstitutional.  

It will be yet another gross travesty of justice if someone else from each and every State in Malaysia has to go through the entire Federal Court process to prove their syariah criminal enactments unconstitutional.

If Nik Elin has proven her case with the Federal court then the Federal Court's ruling should apply immediately upon all the States in Malaysia.

This means the Attorney General's Chambers (as the legal advisor to the government) should do a quick vetting of the Syariah Criminal Enactments in ALL the States and advise on all the relevant State Syariah Criminal Enactments that are also unconstitutional. Such unconstitutional Syariah Criminal Enactments should then be struck off the books.

There are sufficient Federal laws that can deal with whatever problems that need to be dealt with.

I really hope that these Syariah Criminal Enactments that have been ruled unconstitutional will include the criminalisation of thinking, writing and speech as Syariah crimes.

It is high time Malay society moved into the 21st century.

 The views expressed are those of the writer and do not necessarily reflect those of MMKtT.