Federal Court struck down provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019: What are the legal ramifications of the decision?

‍INTRODUCTION

On 9 February 2024, the Federal Court struck down 16 out of the 18 provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019 [Enactment 14], challenged by petitioners Nik Elin Zurina binti Nik Abdul Rashid and Tengku Yasmin Natasha binti Tengku Abdul Rahman.

Originally, 20 provisions of the Kelantan Syariah Criminal Code (I) [Enactment 14] Enactment 2019 (‘Enactment 2019’) were challenged, namely sections 5, 11, 13, 14, 16, 17, 30, 31, 34, 36, 37, 39, 40, 41, 42, 43, 44, 45, 47 and/or 48 (Impugned Sections). However, the petitioners withdrew challenges against sections 5 and 37(1)(a), conceding their constitutionality.

The legal proceedings were commenced by way of petition in the exclusive original jurisdiction of the Federal Court under Article 4(3) and (4), and Article 128(1) of the Federal Constitution, challenging the constitutionality of the Impugned Sections. The petitioners sought a declaration that the Impugned Sections s are invalid, and hence null and void, on the ground that the State Legislature of Kelantan and thereby State Government of Kelantan (the respondent) had no power to make those provisions.

LOCUS STANDI

Before considering the merits of the petition, the Federal Court considered the preliminary objections raised by the respondent. The Federal Court dismissed all preliminary objections.

Crucially, the Federal Court relaxed the rules on locus standi for such proceedings. The respondent’s preliminary objection on this was that leave should not have been granted in the first place. The premise of the preliminary objection was that the petitioners had no locus standi. The respondent contended that the petitioners were “busybodies” who had no basis to initiate the case as they are not even adversely affected by any of the Impugned Sections.

In response, the petitioners claimed current or future residence in Kelantan. They suggested that they have properties in Kelantan and are therefore residents of Kelantan and the Enactment is a law that can be used against them.

The Federal Court agreed that the petitioners had locus standi to maintain the petition. Among the reasons given were:

• Following the recent decision by the Federal Court in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other appeals [2023] 3 MLJ 829 (Taman Rimba), locus standi should be relaxed as much as possible to allow any public-spirited person to file a public law suit provided that he has some interest in the matter;

• In a case where one is a constitutional judicial review, the locus standi must be adjudged on principles even broader than the ones applicable in Taman Rimba. The Federal Court noted pursuant to Article 4(1), there is a presumption of constitutionality of the laws passed after Merdeka Day;

• Taking the respondent’s argument to its fullest, by the general rules of locus standi, the validity of the law may only be challenged and held invalid if the “correct person” shows up before the court to challenge that law. However, this is not supported by the language of Article 4(1) because the provision does not suggest that the courts should filter the litigants that come before them seeking to challenge the constitutional validity; and

• All citizens are entitled to rely on the protections in the Federal Constitution, and they may approach the Federal Court for competency challenge under Articles 4(4) and 128 of the Federal Constitution.

The above was the conclusion reached by the majority of the Federal Court. Abdul Rahman Sebli CJSS dismissed the petition on the sole ground that the petitioners had no locus standi to file the petition, and thus did not have to consider the merits of the case.  

THE DECISION ON THE MERITS

In reaching its decision, the Federal Court considered several principles.

The Legislative Lists and the Doctrine of Pith and Substance

The first was the doctrine of pith and substance. This means that it is not the outward appearance of the law in question and the words it uses that matter, rather the law must be examined as a whole to ascertain whether it deals with, in pith and substance, a subject-matter upon which the body making it has the power to enact in accordance with the Legislative Lists.[1]

The Legislative Lists here refer to the three lists as set out in the Federal Constitution i.e. the Federal List, the State List and the Concurrent List, in which Parliament and/or the State legislature may make laws.[2] Parliament may make laws on matters stated in the Federal List and the Concurrent List, while a State legislature may make laws on matters stated in the State List and the Concurrent List.

The Federal Court made clear that, except for matters that fall within the Concurrent List, both Parliament and the State Legislatures cannot then ordinarily legislate on matters that fall within the purview of the other.

The provision in the Federal Constitution that was to be construed was Item 1 of the State List, which provides that:

“1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, … creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; …”.

The emphasised words were referred to by the Federal Court as the “preclusion clause” to Item 1 of the State List.

Federalism in Malaysia

The exclusivity of the legislative powers on subject matters falling within either the Federal List and the State List was noted to be an important feature of the Federal Constitution as Malaysia is a federation of States, all of whom between themselves and the Federation, have been allowed their own respective fields of power of legislation.

The misapprehensions which led to the petition

According to the Federal Court, the petition arose because of two misapprehensions:

• First, that States can enact any law, even if that law deals with criminal law, if there is no federal law dealing with that issue[3]; and

• Second, that States can enact any lay so lang as that law was enacted in accordance with the precepts of Islam.[4]

On the first misapprehension, the Federal Constitution was formulated with a central bias. This means that the primary powers of legislation are accorded to Parliament, with certain other limited powers conferred on the States. It was stressed again that both Parliament and the State Legislatures are confined to their respective Legislative Lists and ordinarily, they can only make laws within their own respective Legislative Lists subject to certain exceptions that are neither applicable nor relevant to the petition before the court.

In respect of the second misapprehension, the historical documents leading to the Federal Constitution and the Federal Constitution itself indicate that matters relating to Islamic law would be conferred and confined to the States except in the Federal Territories. In fact, the inclusion of Islamic law and personal law into the State List was done with the clear intention of limiting the kinds of laws that the States can enact on the subject matter.

Having regard to the central bias in favour of the Federal Parliament when it comes to criminal legislation, and when the two lists (Federal and State) are read together, the intention behind Item 1 of the State List is that it was intended to apply only to offences that are purely religious in nature. In other words, offences that relate purely to the precepts of Islam and nothing else.

The Malaysian Legal System Leaning Towards Secularity

Another important observation made by the Federal Court is that the Malaysian legal system leans more towards secularity without being purely secular. This is because there is limited allowance made in the Federal Constitution for legislation and application of Islamic law. In this sense, Malaysia is a unique nation with a mixed or dual legal systems (secular and Islamic), which are meant to function independently of one another.

The Federal Court’s approach

The Federal Court summarised its approach in dealing with challenges on constitutionality of Islamic laws as follows:

• First, determining whether the impugned section legislated by the State Legislature is an offence against the “precepts of Islam”, which refers to one of the two following broad categories:

• The first category relates to any matter specifically referenced in Item 1 of the State List and to other relevant provisions in the Federal Constitution. If the impugned section in pith and substance can be referenced to any of Item 1 or any other relevant provisions in Federal Constitution, and the law is applicable only to persons professing the religion of Islam, then it is a religious offence and the law is validly enacted by the State Legislature as it clearly falls under the State List; and

• The second category covers a purely religious offence relating to (i) aqidah; (ii) sanctity of the Islamic religion or its institutions; or (iii) one purely relating to morality in Islam;

• If the impugned section is in pith and substance a purely religious offence, the court must test the impugned section against the Federal List. If the impugned section in pith and substance relates to a purely religious offence which could not be referenced to the Federal List and it concerns only the Muslims in Malaysia, then it is within the State Legislature’s power to make it; and

• If it is a purely religious offence, but in pith and substance it falls under matters of criminal law in the Federal List or general criminal law which involves an element of public order, safety, health, security, morality, etc., of general application, then it will be caught by the preclusion clause. For example, murder, theft, robbery, corruption which can be considered offences against the precepts of Islam but in pith and substance it falls under the criminal law of general application to everyone in Malaysia.

Constitutionality of the Impugned Sections

Applying the principles above, the Federal Court decided that sections 13 and 30 of the Kelantan Syariah Criminal Code (I) Enactment 2019 [Enactment 14] are constitutional:

• Section 13. This deals with the religious offence against a person professing the religion of Islam in removing a child in his custody and giving him specifically to either a non-Muslim or a Muslim of reprehensible character; and

• Section 30. This deals with the offence of a person wilfully uttering or disseminating words contrary to “hukum syarak” (Islamic law). This provision therefore deals in pith and substance with the first broad category of “precepts of Islam”, with reference to Article 11(4), which deals with the power of the States to make laws against propagation of religions other than Islam to Muslims.

On the other hand, applying the same analysis, the following provisions were held to be unconstitutional:

• Section 11. In pith and substance, this provision deals with hate crime. Hate crime is a matter of general criminal law and therefore cannot be deemed as a “purely religious offence”;

• Sections 14, 16, 17 and 47. These provisions relate to sexual offences. Inasmuch as these offences do seem to relate to the second broader meaning of “precepts of Islam”, these offences can also apply equally to non-Muslims and ought to be dealt with by federal law as “criminal law” in Item 4 of the Federal List;

• Section 31. This deals with the offence of sexual harassment. Such offence cannot be classified as a “purely religious offence” given its general character as a criminal offence that is capable of general application in this country;

• Section 34. This provision deals with possession of false documents, giving false evidence, information or statement, or aiding in falsification of such documents or information in respect of Syariah Court proceedings. However, there is nothing in Item 1 of the State List to justify the making of the laws by the State legislature relating to perjury, false evidence or obstruction of justice. On the other hand, the Federal List does expressly contemplate this in Item 4(e)(i);

• Section 36. This deals with the consumption of “anything intoxicating” other than “intoxicating drinks” (which is covered in section 35 but not challenged by the petitioners). In Item 14(d) of the Federal List, “intoxicating drugs and liquors” are expressly mentioned and are therefore within Parliament’s purview to legislate laws dealing with such matters;

• Section 37. This deals with the offence of gambling. Gambling is a regulated leisure activity. It is considered a vice and can fall within the banner of something against the precepts of Islam within its second broad category. However, the preclusion clause applies as it is clearly a matter spelt out in Item 4(l) of the Federal List;

• Section 39. This deals with the offence of fraudulently making a reduction in scale, measurement or weight. Even upon a simple reading, in pith and substance this deals with matters that fall within the ambit of Item 8(f) of the Federal List;

• Sections 40 and 41. These provisions generally relate to financing matters. Since banking and financing matters appear to be governed solely by federal law, States cannot enact laws on the matter. More specifically, Item 4(k) of the Federal List empowers parliament to ascertain Islamic and other personal law for the purposes of federal law. Whereas, Islamic banking strictly relates to finance and is caught by Item 7 of the Federal List. Hence, both in outward form and in pith and substance, the provisions cover subject matters with respect of which only Parliament can make laws on;

• Section 42. This relates to the offence of abusing of halal label and connotation. However, food safety and adulteration of food safety are matters for Parliament to legislate on based on Item 8 of the Federal List. This includes the use and abuse of the halal logo;

• Sections 43, 44, 45 and 48. These provisions deal with similar subject matters i.e. offences relating to vice services. These offences can certainly fall within the precepts of Islam in the second category. However, the solicitation of vice services and prostitutions are crimes that affect not just Muslims but any persons in Malaysia. Hence, it is not a “purely religious offence” as it is a matter of general criminal law relating to public order, safety, health and morality.

CONCLUSION

The Federal Court's decision carries significant legal ramifications, addressing both the locus standi of the petitioners and the constitutional validity of specific provisions. The importance of the case is apparent from the fact that a total of nine judges presided over the case. The coram comprised of the Chief Justice, the President of the Court of Appeal, the Chief Judge of Malaya, the Chief Judge of Sabah & Sarawak (CJSS), and five other Federal Court judges.

The relaxation of locus standi rules, allowing public-spirited individuals with a genuine interest to challenge legislation, reflects a broader perspective in line with recent judicial decisions. The court's emphasis on constitutional safeguards and the right of all citizens to seek protection under the Federal Constitution highlights the importance of ensuring legal accountability and adherence to constitutional principles.

In essence, the Federal Court's decision provides clarity on the constitutional boundaries of state legislative powers, reinforcing the principle of federalism and the need for adherence to the provisions of the Federal Constitution. The ruling not only addresses the specific case but sets a precedent for future challenges to the constitutionality of Islamic laws enacted by individual states in Malaysia.

Importantly, the Federal Court also acknowledged the unique character of the Malaysian legal system, which leans toward secularity while incorporating elements of Islamic law. In this regard, in Malaysia, religious issues such as this one can be very sensitive, especially if the issue is politicised and sensationalised. The Federal Court was well aware of this reality as the Chief Justice in her grounds made clear that the case had absolutely nothing to do with undermining the religion of Islam[5]:

“The record must be set straight. The present case, contrary to erroneous and politically-fuelled suggestions, has absolutely nothing to do with undermining the religion of Islam. The allegation that any decision of this Court could destroy or even uphold Islamic law in this country is therefore not even remotely close to what the present petition actually entails”.

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This article is written by Raja Nadhil Aqran (Partner) and only contains general information. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.

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For further information, kindly contact info@aqranvijandran.com.

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Credit for header image: malaymail.com - Picture by Sayuti Zainudin

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[1] Paragraph 61 of the judgment.

[2] Article 74 of the Federal Constitution and the Ninth Schedule.

[3] Paragraph 65 of the judgment.

[4] Paragraph 66 of the judgment.

[5] Paragraph 14 of the judgment.

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