On 9 February 2024, the Federal Court decided on a petition filed by one Nik Elin Zurina, who challenged 18 sections of the Kelantan Syariah Criminal Code Enactment 2019 (“Kelantan Enactment”). The Federal Court agreed with Nik Elin Zurina on 16 of those sections (which are declared unconstitutional).
While the case only concerned those 18 sections of the Kelantan Enactment, the public discussion about the case went much wider, with some choosing to strategically provoke religious sentiments.
A common misconception raised in some of these public discussions is that the position of the Syariah courts is under threat.
The truth is that the Syariah courts have been completely uninterrupted by this case. Only those 16 sections of the Kelantan Enactment (which are declared unconstitutional) were affected. The power of the Syariah courts in Malaysia is governed by Act 355[1], which has not been affected in any way.
Why were those 16 sections declared unconstitutional by the Federal Court? One principle that guides the Malaysian legal system is that Parliament cannot make laws on State matters and the States cannot make laws on Parliament’s matters. If Parliament or the States make laws on matters that they aren’t supposed to, those laws are unconstitutional.
The issue with those 16 sections is that, although labeled as Syariah laws, they actually deal with general criminal law.
If something is a general crime that applies to everyone, it isn’t a purely religious offence. The States can only deal with purely religious matters in making laws about Islam.
For example, the crime of defiling a place of worship is not a purely religious offence because it is an offence under general criminal law. It does not become a crime in Malaysian law purely because Islam makes it a crime. Hence, defiling a place of worship is a general criminal offence that applies to everyone.
On the other hand, crimes relating to the custody of Muslim children would be a purely religious offence, because it only relates to Muslims and Islamic custody law.
Another example would be how the offence of drinking alcohol by a Muslim is a purely religious offence (because it is prohibited purely by religion), while consuming drugs is a general criminal offence that applies to everyone.
Having examined the various provisions, the Federal Court found that 16 of the 18 challenged sections of the Kelantan Enactment were general criminal offences that the Kelantan Legislative Assembly had no power to make.
Following this decision, some have expressed disagreement and claim that the position of Islam has been challenged. The truth is that the Federal Court’s preserved the position of Islam and drew a line between the powers of Parliament and the States, in line with the Federal Constitution.
In fact, it is the Kelantan State Legislative Assembly (along with other state legislative assemblies) that tried to alter the position of Islam by attempting to make general criminal laws at the State level and labelling them Syariah laws. If this trend was not stopped, there would be a serious risk that general criminal law would be different from state to state.
All that the Federal Court did was to uphold the Federal Constitution, and in doing so actually preserved the position of Islam in the Malaysian legal system.
[1] Syariah Courts (Criminal Jurisdiction) Act 1965
About the Author
Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.
