Malaysian Federal Court ruling on Kelantan’s powers: Let reason prevail

It is alarming to learn that the lawyer who challenged the constitutionality of certain Kelantan state laws has received death threats - not one or two but many.

But it’s good to know that police are acting speedily and have so far identified three owners of social media accounts that allegedly threatened lawyer Nik Elin Zurina Nik Abdul Rashid after she challenged 18 provisions in Kelantan’s Shariah Criminal Code (I) Enactment 2019.

The media quoted Kuala Lumpur police chief Allaudeen Abdul Majidas as saying on 14 February that one of three investigation papers opened by police had been handed over to the deputy public prosecutor for further action. Investigations, he added, were continuing.

On 11 February Nik Elin Zurina Nik Abdul Rashid revealed that she had received many death threats including via social media and that she had filed three police reports.

“There have been countless threats on my life, along with numerous other online attacks and (threats to) ‘slaughter’ me. I have lost count of how many threats there have been because these individuals do not understand,” she said in a New Straits Times podcast.

This is alarming and sad at the same time. I understand that religion is an emotive subject but should we not show our disagreement in a civil manner? In a democracy, people have a right to disagree, even protest, but not go to the extend of harming or threatening to harm another person.

Nik Elin Zurina has reiterated that the petition to the Federal Court was neither political nor an attack on Islam.

Nik Elin Zurina and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman had sought a declaration that 18 provisions of the Kelantan Shariah Criminal Code (I) Enactment 2019 were invalid because the Kelantan State Legislative Assembly had overstepped its powers or had no powers to make such laws.

“If only they would take the time to read and understand the laws and the reasons behind the challenge, they would understand. All they seem to do is blindly follow the instructions of their political leaders,” Nik Elin was reported as saying.

On 12 February, Tengku Yasmin Nastasha lamented in a social media post that she and her mother were being unfairly portrayed by some as a threat to the sanctity of Islam.

She revealed that she had not got much sleep and had barely eaten over the previous four days.

"It is imperative to clarify that our pursuit was driven by a singular motive: adherence to due process in the enactment and application of laws. The vitriolic campaign waged against us by (these) adversaries manifested in baseless allegations, portraying us as threats to the sanctity of Islam in our nation."

The Federal Court ruling on the Kelantan State Legislative Assembly’s authority to enact certain laws or provisions needs to be seen clearly and handled carefully, without stirring up emotions or making provocative statements or resorting to death threats.

That is why Chief Justice Tengku Maimun Tuan Mat took pains to state, in delivering the 8-1 majority decision on 9 February, that the case was to determine whether the Kelantan state legislature had made the 18 provisions within the limits set by the Federal Constitution or otherwise.

"The Shariah Court or Islamic law will never be buried and laid to rest because the Federal Constitution has guaranteed legislative power to all state governments to enact laws implemented by the Shariah Court," she said.

It’s not about Islam, says chief justice

"The issue before us has nothing to do with the position of Islam or the Shariah Court in this country. Whether Islam or the Shariah Court is upheld or otherwise is not a question in this petition," she stressed.

“Neither the shariah courts nor Islamic laws will be buried as claimed by lawyer Yusfarizal Yussoff,” she added in delivering the decision to annul 16 provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019.

Eight of the nine judges who sat on the Federal Court bench on 9 February agreed that the state of Kelantan had no power to include these 16 provisions as part of the enactment because they were already covered under Parliament's law-making powers.

This included provisions criminalising gambling, sodomy, sexual harassment, desecrating places of worship, giving false evidence, incest and sexual intercourse with a corpse.

However, the Federal Court ruled that two of the 18 provisions, Section 13 (on selling or giving away a child to non-Muslims or morally reprehensible Muslims) and Section 30 (on words capable of breaking peace) were constitutional and valid as the subject matter in these provisions were on the State List and within the ambit of the state’s legal authority.

The dissenting judgment came from Chief Judge of Sabah and Sarawak Justice Abdul Rahman Sebli who dissented on grounds of locus standi.

It’s a constitutional issue

"The essence of those (16) provisions are matters under the Federal List which only Parliament has the power to make," Tengku Maimun said.

The Malaysian Federal Constitution has a list of matters which are the sole responsibility of Parliament, known as the Federal List, and another list of matters which fall within the jurisdiction of the state legislative assemblies, known as the State List. In addition, a Concurrent List enumerates matters that are the joint responsibility of Parliament and the state legislative assemblies.

As expected, the Federal Court decision did not go down well with some Muslims. Takiyuddin Hassan, the secretary-general of Islamist opposition party PAS, for instance, described the ruling as a “dark day in history for Muslims”.

“We are very saddened today. This is a ‘Black Friday’ for shariah law. When a state’s shariah criminal law is annulled, it puts the law in all other states in a precarious position,” the lawyer and Member of Parliament for Kota Bharu in Kelantan, is reported to have said to more than 1,000 people – mostly PAS supporters - gathered outside the Palace of Justice when the Federal Court was sitting on 9 February.

Last night (14 February), PAS president Abdul Hadi Awang said, without mentioning anyone specifically, that there had emerged judges who were “influenced by the legacy of colonisers”.

He said in a Facebook post that the sin of insulting Islam was greater than the sin of insulting the courts.

Shariah Court’s power still intact

Minister in the Prime Minister’s Department in charge of Islamic religious affairs, Mohd Na’im Mokhtar, reacted quickly to try and calm the situation by saying that the Shariah Court’s authority was still intact.

He also outlined measures he would be taking, including requesting the Federal Court’s reasons for its judgement.

“We will study the ruling and find ways to empower the Shariah Court. All stakeholders involved with the Shariah Court will be called to give their input and if there are any amendments or law reforms that need to be done, we will do it immediately.”

A day earlier, on 8 February, Yayasan Dakwah Islamiah Malaysia (Yadim) president Hasanuddin Mohd Yunus was quoted by the media as calling on Muslims to remain calm whatever the verdict.

"Yadim believes that the real issue in Nik Elin's case is not about challenging the sovereignty of Islam or encroaching on the jurisdiction of the Shariah Court, but rather a test of the principle of federalism, where the Federal Court will decide which laws should be enacted by Parliament and which laws should be enacted by the State Legislative Assembly," he added.

Following the court’s decision, former law minister Zaid Ibrahim congratulated Nik Elin Zurina for succeeding where he had failed in his attempt 30 years ago to challenge Kelantan's “hudud law”.

The former Kota Bharu MP and lawyer said he had to withdraw the case due to political pressure as his action could have led to a potential loss for the then ruling Barisan Nasional in the general election.

Reminding PAS and Bersatu that Islam’s position was secure, he said in an X post: “There is no need to play politics with religion. Serve the Muslims well; take care of their present hardships; make the current system more efficient.

“There is no need to violate and infringe on our constitution and destroy the framework our leaders had worked hard to establish in 1957 and 1963 by overzealous demands for an Islamic system. Work with what we have, and accept we are a democracy.”

Resolve issue with everyone’s interest in mind

Peace-loving Malaysians will hope that no one will turn this into a political football or stir up emotions. It is hoped that those who are unhappy will not resort to threats against Nik Elin Zurina, or anybody else for that matter.

Those concerned – including the federal and state governments - should resolve the matter according to the Federal Constitution and in a civil and peaceful manner, taking into consideration the rights of all citizens

A.Kathirasen is a veteran Malaysian journalist/editor who has been writing columns, with breaks, in newspapers and online since 1981. All views expressed are the writer's own.

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