KUALA LUMPUR, March 22 — Kelantan is trying to bring back 16 provisions on Shariah criminal offences that were declared invalid by the Federal Court, but what happened before that?
The short answer about the 8-1 decision: The Federal Court sat as a nine-judge panel, with the majority or eight judges deciding that the 16 provisions in a Kelantan state law were unconstitutional and invalid as the state had no power to make these laws. Only one judge disagreed by saying the two Malaysian Muslim women who challenged the provisions did not even have legal standing to file the challenge in the first place.
But why and how did the Federal Court reach its decision in this case (commonly known as the ‘Nik Elin’ case)? Was it ever about religion or not?
Here’s a quick summary by Malay Mail of everything you need to know, based on the 87-page majority judgment and 72-page minority judgment:
Wait, what laws are we talking about?
In May 2022, Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed a constitutional challenge at the Federal Court over 20 offences in the Kelantan Syariah Criminal Code (I) Enactment 2019. (This state law applies only in Kelantan and only to Muslims.)
After conceding that two of the 20 challenged provisions (Section 5 on false claim and Section 37(1)(a) criminalising gambling or being found in a gambling place regardless of whether the person gambles) are constitutional, they later trimmed the list down to 18 provisions in the Kelantan state law.
Naming the Kelantan state government as the respondent, the two women argued the 18 provisions were invalid as only Parliament had the powers to make criminal laws.
Out of the 18 Shariah provisions, the Federal Court’s majority decision ruled that 16 are unconstitutional, and the two other provisions are presumed to be constitutional.
Here’s what the Federal Court’s majority decision says
Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the nine-judge panel, delivered the brief summary of the majority decision on February 9. Her full judgment was made available earlier this month.
The majority judgment written by the chief justice was agreed to by seven judges: President of the Court of Appeal Tan Sri Abang Iskandar Abang Hashim, then 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.
It’s not about Islam, it’s purely about lawmaking powers under Federal Constitution
Just before diving into the key issue, the Federal Court took the time to address allegations and public controversy related to the case, stressing that this constitutional challenge had nothing to do with religion but was instead about the law.
“The record must be set straight. The present case, contrary to erroneous and politically-fuelled suggestions, has absolutely nothing to do with undermining the religion of Islam,” the chief justice said, and further dismissed allegations that any Federal Court decision could destroy or uphold Islamic law in Malaysia as this was not what this case is about.
The chief justice made it clear that the only issue in this case is actually whether Kelantan — via the Kelantan state legislature — was constitutionally empowered to make the 18 disputed provisions. Or in other words, which is the correct legislative body to make these laws: Parliament or the Kelantan state legislature?
“The petition has nothing to do with the substantive principles of Islamic law or its position in this country,” she said.
Let’s clear the three preliminary issues
The Federal Court dismissed Kelantan’s bid to put an end to the court case on technical grounds, such as whether the two Muslim women with Kelantan ties could file the challenge and whether they had named the right respondent for the case.
1. Locus standi (Latin for legal standing)
Disagreeing with Kelantan’s first preliminary objection, the Federal Court decided that the duo have locus standi to file this case, and that this case is not academic nor abstract. (More on this later.)
2. Who should be party to the case
The Federal Court dismissed the Kelantan state government’s second preliminary objection, which claimed the two women had failed to name the correct party to the case (the Kelantan state legislature or the Kelantan Islamic Religious Affairs Department (Jaheaik)) that is responsible for enforcing the 18 provisions.
The Federal Court said this court challenge is over the power to make the disputed provisions and not about the enforcement of these laws, also ruling that the state legislature can be made a party for “completeness” but not naming it as a respondent would not be fatal to the case.
Citing the Federal Constitution’s Article 4(3) and 4(4) requirements, the Federal Court said the Kelantan state government is the correct party to be named as respondent for such court challenges against the invalidity of laws due to lack of lawmaking powers, and ruled that the Kelantan state government can be the sole respondent for this case as it is sufficient to name it as a party.
3. ‘Expert’ opinions on how to interpret Constitution?
The Federal Court expunged or completely removed the Kelantan state government’s three court documents — which contained “expert” opinions on the constitutional interpretation of the 18 disputed provisions and which alluded to what “precepts of Islam” are derived from and include. The court said these documents have no bearing on the case’s outcome.
The Federal Court stressed that only the courts are entitled to interpret the Federal Constitution based on legal points, and that “expert” opinion is not an accepted method of constitutional interpretation.
“In any event, the Islamic principles of aqidah, syariah or akhlak are not matters for our consideration,” the chief justice said when noting the contents of the “expert” opinion, pointing out again the Federal Court instead has to decide whether the Kelantan state legislature went beyond its lawmaking powers under the Federal Constitution.
Go beyond how the Kelantan provisions are packaged, check what they really are about in substance
Under the Federal Constitution’s Ninth Schedule, there are three main legislative lists (or lists that tell you who has the power to make what type of laws): List I – Federal List, List II – State List, and List III – Concurrent List.
Parliament can make laws on any matters listed in the Federal List, while state legislatures can make laws on any matters listed in the State List. The Concurrent List states the areas that both Parliament and state legislatures can make laws on.
The two women’s lawyers had argued that Kelantan has no power to make the 18 provisions in the state law as there are already existing federal laws dealing on the same subject matter, and had even provided a table to compare the 18 provisions with their federal law equivalent.
On the other hand, Kelantan argued that the 18 provisions are different from the federal laws cited by the duo.
Citing an 2021 precedent in the Iki Putra case, the Federal Court described the approach of comparing federal laws with state laws — to decide whether the state can make state laws based on whether federal laws exist on the same matter — as “simplistic” and incorrect.
Instead, the Federal Court said the correct approach is to look at a law as a whole: In substance, does the law deal with a subject matter that the legislature has power to make law on?
The Federal Court said “it is not the outward appearance of the law in question and the words it uses that matter”, but instead stressed on determining what a law is really about.
Correcting two misconceptions about “criminal law”
Here’s how the Federal Court corrected two misapprehensions or misunderstandings:
Mistaken belief #1: States can make any law (even if it deals with criminal law) if there is no federal law dealing with that issue. Or even if there is federal law on criminal matter, states can still make state criminal law if it is worded differently or achieves the same outcome via different means.
Mistaken belief #2: States can make any law as long as it deals with precepts of Islam. (Related to mistaken belief #1 that even if there is an existing federal law on the same matter, state law will be validly made as long as it deals with the same issue from Islamic perspective and Islamic precepts lens.)
Remember the Federal List which tells us what Parliament has power to make laws on? List I’s Item 4 broadly states “civil and criminal law and procedure and the administration of justice” as something within the federal legislature’s lawmaking powers.
As for the State List or List II, Item 1 has a long paragraph on what state legislatures can make law on for Muslims, including “Islamic law and personal and family law of persons professing the religion of Islam”; and “mosques or any Islamic public places of worship, creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”.
The Federal Court describes the phrase “except in regard to matters included in the Federal List” as a preclusion clause to the State List’s Item 1.
So what does all this mean? It means that Parliament is the one that has powers to make “criminal law” (under the Federal List), while state legislatures like Kelantan’s can make laws on religious crimes (unless these offences fall under Parliament’s lawmaking powers in the Federal List).
Based on the Federal Constitution’s structure and also the report of the Reid Commission which was mainly responsible for the Constitution’s creation, the Federal Court said Parliament has the main or primary powers to make laws, while states are given limited powers to also make laws (including on matters relating to Islamic law/ offences against the precepts of Islam).
The Federal Court suggested that Malaysia’s multiracial and multireligious society meant the country’s general criminal law needed to apply equally to all persons regardless of race or religion and this lawmaking power was given to Parliament, while saying that the intention behind the State List’s Item 1 was to give powers to states to make laws “only to offences that are purely religious in nature” or “offences that relate purely to the precepts of Islam and nothing else”.
“The other reason why the Federal Constitution was drafted in this way is so that Muslims would not be subject to different laws and legal systems for the same offences when compared to non-Muslims for example on general laws like rape, corruption, theft, robbery, etc,” the Federal Court said.
While many criminal law offences (such as theft, robbery, rape and corruption) would naturally also go against the precepts of Islam, the Federal Court said only Parliament has the power to make such laws as such offences fall within the “criminal law” category, and that this is based on the Federal Constitution’s separation of the lawmaking powers between Parliament and the state legislatures.
So can states make law on offences (which should be laws made by Parliament) by “disguising” the state laws as offences that deal with precepts of Islam, and can such state laws co-exist with federal criminal laws on the same subject? The answer would be no, based on the Federal Court’s decision.
Please give me the TLDR version
Here’s a simplified version of the Federal Court’s approach:
1. Is the offence in the state legislature’s disputed provision an “offence against the ‘precepts of Islam”)?
(Yes, it is an offence against precepts of Islam if it falls under two broad categories:
1st category:
In substance, these offences fall under matters specifically mentioned in State List’s Item 1 or other applicable Federal Constitution provisions (e.g. Article 11(4) where state law may control/restrict propagation of religious doctrine/belief among Muslims) + this law only applies to Muslims = It is a religious offence and it is validly enacted by the state legislature as it clearly falls under the State List.
2nd category:
Purely religious offence (relating to (i) aqidah (creed); (ii) sanctity of Islam or its institutions, (iii) purely relating to morality in Islam)
2. If it is a religious offence, is it in substance under the Federal List or State List (is it Parliament or state legislatures that have the power to make this law)?
a. It is a “purely religious offence”, if it does not fall under Federal List and it only applies to Muslims/enacted only for purposes of Islamic law or religious reasons / confined only to Islam (E.g. someone claims he is a Prophet.)
Conclusion: The state legislature has power to make this law. The state-legislated offence is valid.
b. It is not a “purely religious offence”, if it is a religious offence but in substance falls under Federal List’s “criminal law” or is considered “general criminal law” (with element of public order/safety/health/security/
Conclusion: Parliament is the one with power to make this law. The state-made offence is invalid.
The Federal Court’s majority judgment then went through a detailed analysis of all the 18 Kelantan provisions being challenged to determine if they were actually matters that fall under the Federal List or federal legislature’s lawmaking powers instead:
Here’s what the dissenting judge said