CJ warns lawyers against distorting facts in Kelantan constitutional challenge, after accusation of ‘burying’ Shariah courts

This is the second time the country’s top judge has had to emphasise that there is no dispute arising over Islam as the official religion of the Federation. but solely on the interpretation of words within the Federal Constitution.

(MMO) – Chief Justice Tun Tengku Maimun Tuan Mat today warned legal practitioners involved in the hearing of two Malaysian Muslim women’s constitutional challenge to 20 Shariah offences under the Kelantan state law to refrain from making comments on the case to incite the public.

At the onset of today’s hearing, Tengku Maimun who was chairing a nine-member bench, said members of the Bar were bound by etiquette and thus inappropriate for them to discuss the aforementioned case in public discourse.

“We are taking this unusual step of making this observation because so much has been said by so many people and much has been said is a distorted version of what the real issue is before us.

“As we have stated from the outset of hearing, the issue is not about undermining the position of Islam or the Shariah court. The issue arising out of the petition is simply the competency of the Kelantan State Assembly to enact legal provisions.

“We would remind everyone to uphold the rule of law and not to incite the sentiment of the public,” she said.

This is the second time the country’s top judge has had to emphasise that there is no dispute arising over Islam as the official religion of the Federation. but solely on the interpretation of words within the Federal Constitution.

Earlier, lawyer Datuk Malik Imtiaz Sarwar who was representing the petitioner, informed the court that one of the respondent counsels, Yusfarizal Yussoff, had allegedly made comments on the case in a public event a few months prior.

Tengku Maimun then asked Yusfarizal if he had indeed made the remark as cited in the petitioner’s affidavit.

The impugned remark referred to Yusfarizal’s claim that the ongoing case is an attempt to “bury” the powers of the Shariah courts. The article was published by HarakahDaily — the outlet of Islamist party PAS, who is opposing the constitutional challenge.

Yusfarizal then replied by saying he needed time to check the transcript and was unsure of the exact wording that was said.

However, Tengku Maimun warned Yusfarizal nonetheless, stating the lawyer should have known better based on his professional ethics and that the remark on the Shariah court institution being “buried” is entirely untrue.

“Subject to whatever reply Mr Yusfarizal wishes to make to the affidavit, we would like to remind lawyers that you are bound by the ethics of your profession and you know very well that it is not appropriate to discuss pending cases at a public forum, more so when you failed to disclose the full facts of the case,” she said.

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

In the two women’s challenge, they argued that the Kelantan state legislative assembly did not have the powers to create these 18 Shariah provisions in a state law, as it is the federal government instead which holds the powers under the FC to make laws on such crimes.In today’s resumed hearing involving parties appearing as amicus curiae (friend of the court), the Malaysian Bar and Sisters in Islam supported the petition; while the Malaysian Muslims Lawyers Association (PPMM), Federal Territories Islamic Religious Department (MAIWP), Kelantan Islamic Religious Department (JHAIK) and the Perak Islamic Religious Council and Malay Customs opposed the petition.

After hearing submissions from the parties, the court reserved its ruling and fixed the decision for another date.

What is being challenged

On May 25, 2022, Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed the constitutional challenge directly at the Federal Court via Article 4(4) of the Federal Constitution, and named the Kelantan state government as the sole respondent.

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

Under Article 4(4), the validity of any laws made by the Parliament or a state legislature can be questioned in court, based on reasons that the Parliament or a state legislature did not have powers to make those laws. Such constitutional challenges under the Article 4(4) route can only start if a Federal Court judge grants leave or permission.

On September 30, 2022, the Federal Court allowed the two women to start their constitutional challenge.

Through the court challenge, the two women are seeking for the Federal Court to declare that 18 provisions of Kelantan’s Shariah 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.

The initial 20 provisions cover various Shariah offences listed by the Kelantan state legislature, including Sections 5 (false claim); 11 (destroying or defiling place of worship); 13 (selling or giving away child to non-Muslim or morally reprehensible Muslim); 14, 16 and 17 (sodomy, sexual intercourse with corpse, sexual intercourse with non-human); 30 (words capable of breaking peace); and 31 (sexual harassment).

The rest of the 20 provisions are Sections 34 (possessing false document, giving false evidence, information or statement), 36 (anything intoxicating), 37 (gambling), 39 (reducing scale, measurement and weight), 40 and 41 (executing transactions contrary to Shariah code and executing transactions via usury), 42 (abuse of halal label and connotation), 43, 44, 45, 48 (offering or providing vice services, preparatory act of offering or providing vice services, preparatory act of vice and “muncikari” otherwise known as a person acting as an intermediary between a woman and man or between the same gender for certain offences) and 47 (act of incest).

However the 20 impugned provisions were later reduced to 18 provisions after Section 5 and Section 37(a) were dropped from the petition hearing as disclosed by lawyers representing Nik Elin.

Under the Federal Constitution’s Ninth Schedule, there are two different lists that say what the federal government — via Parliament — has powers to make laws on, and what the state governments — via their state legislative assemblies — have powers to make laws on.

List I is the Federal List which states what Parliament can make laws on, while List II or the State List provides a separate and shorter list of what state governments can make laws on.

Kelantan’s Shariah Criminal Code (I) Enactment 2019 was gazetted on December 31, 2020 and lists more than 50 offences, and is said to have come into force on November 1, 2021.