Duo win Federal Court’s nod to challenge Kelantan’s 20 Shariah offences which overlap with federal govt’s laws

The question in this court case is whether the Kelantan state legislative assembly overstepped its limited scope of powers under the Federal Constitution to make laws, and which means such laws would be invalid or having no legal effect.

(MMO) – Two Malaysian Muslims with ties to Kelantan have successfully obtained the Federal Court’s permission to proceed with a constitutional challenge to 20 Shariah offences under a Kelantan law.

The Kelantan government had resisted the court challenge by insisting that its state Islamic law — which contains those 20 Shariah offences — was valid and constitutional, and had also claimed the two women had no legal standing to file such a court case.

But the Kelantan government ultimately failed to convince the Federal Court that the duo’s court challenge should not be heard.

The court challenge was filed by Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman on May 25 directly at the Federal Court via Article 4(4) of the Federal Constitution, with the Kelantan state government named as respondent.

Under Article 4(4), the validity of any laws made by Parliament or a state legislature can be questioned in court, based on reasons that Parliament or a state legislature did not have powers to make those laws.

They went directly to the Federal Court as it has exclusive jurisdiction to decide such questions, based on Article 128(1)(a) of the Federal Constitution.

For such constitutional challenges under the Article 4(4) route, it can only start if a Federal Court judge grants leave or permission.

All OK to start challenge

On September 30, Federal Court judge Datuk Vernon Ong Lam Kiat heard arguments by lawyers for both the two women and the Kelantan state government, before deciding on the same day to allow the two women to commence their court challenge.

The judge ordered the duo to start proceedings for their constitutional challenge within 14 days of the court order.

This means that the two women have cleared the first hurdle, and that a panel of Federal Court judges will be hearing and deciding whether the Kelantan state government had the power to make the state law on the Shariah offences.

Following the Federal Court’s decision on September 30, the two women on October 13 filed the petition needed to start the hearing of the actual constitutional challenge on its merits.

Based on the court’s listing, the case is scheduled to come up for case management at the Federal Court on November 14.

The two women were represented by Datuk Malik Imtiaz Sarwar and Surendra Ananth in the September 30 online hearing, while the Kelantan state government was represented by Kelantan’s assistant state legal adviser Adam Mohamed.

What is being challenged and why?

The two women’s challenge ultimately argues that the Kelantan state legislative assembly did not have the powers to create these 20 Shariah provisions in a state law, as it is the federal government instead which holds the powers under the Federal Constitution to make laws on such crimes.

Through the court challenge, the two women are seeking for the Federal Court to declare that 20 provisions of Kelantan’s Syariah Criminal Code (I) Enactment 2019 are invalid and null and void, as the Kelantan state legislature has no powers to make laws on these matters.

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