Where is federal govt in Kelantan shariah enactment dispute, judge asks

Justice Rahman Sebli, who delivered the sole minority opinion, said the challenge ought to have been commenced by the Attorney-General.

(FMT) – The sole dissenting judge in a constitutional challenge brought by a mother and daughter over 18 provisions in a Kelantan state shariah enactment has questioned the federal government’s absence in the proceedings.

Chief Judge of Sabah and Sarawak Justice Rahman Sebli noted that the federal government was not a party to the motion brought by lawyer Nik Elin Zurina Nik Abdul Rashid and daughter Tengku Yasmin Nastasha Tengku Abdul Rahman to strike down various provisions in the state law.

“It is unclear what is the AG’s stand on this,” Rahman said, noting that the Attorney-General usually appears on the federal government’s behalf in court proceedings.

“The AG should be the party that initiates this challenge without having to seek leave from the Federal Court,” he said.

In an 8-1 ruling today, the apex court struck down 16 provisions contained in the Kelantan Shariah Criminal Code (1) Enactment 2019, on grounds that they violate the Federal Constitution.

The provisions that were struck down included making false claims; destroying a place of Muslim worship; sodomy; sexual intercourse with a corpse and a non-human (bestiality); sexual harassment; possessing, having or giving false information; consumption of intoxicating substances; gambling; reducing scales and measurements; executing transactions contrary to hukum syarak; executing usury transactions; abuse of the “halal” label; pimping; offering prostitution services; and incest.

Delivering the majority ruling, Chief Justice Tengku Maimun Tuan Mat said the state assembly had no power to enact the 16 provisions as part of its enactment as the offences were already covered under federal laws.

Other judges in the majority were Court of Appeal president Abang Iskandar Abang Hashim, Chief Judge of Malaya Zabidin Diah, and Justices Nallini Pathmanathan, Mary Lim, Harmindar Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais.

Tengku Maimun said Nik Elin and Yasmin were not individuals who were going against “God’s laws” but were simply questioning whether the provisions could be enacted by the Kelantan legislative assembly.

However, Rahman said that the mother and daughter duo had no legal standing to initiate the challenge because they were not aggrieved parties.

He said they had failed to show how the enactment had “violated” their constitutional rights.

“They only contended that the state assembly was not empowered to pass the enactment,” he added.

According to Rahman, the previous Federal Court panel that sat in 2022 should not have allowed Nik Elin and Yasmin to proceed with their challenge because they were mere “busybodies”.

“This application is an abuse of the court process. The court has no basis to hear the merits of the case when both of them failed to pass the first hurdle (the leave stage),” he said.