Constitutional Review: Nik Elin vs Kelantan state government

A constitutional review of 20 provisions in the Kelantan Syariah Criminal Code (1) Enactment

Overview of the Nik Elin case

In October 2022, Nik Elin and her daughter, Tengku Yasmin Natasha filed a constitutional review of 20 provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019 on the grounds that the state government does not have the legislative competency to enact the laws as demarcated in the Federal Constitution through the Federal and State Lists. Following the first hearing, the petitioners withdrew their review on two provisions - false claims and gambling.

The 20 impugned provisions are

• Section 5 – False claim (withdrawn)

• Section 11 – Destroying or defiling place of worship

• Section 13 – Selling or giving away child to non-Muslim or morally reprehensible Muslim

• Sections 14 – Sodomy,

• Sections 16 - Sexual intercourse with corpse,

• Sections 17 - Sexual intercourse with non-human

• Section 30 – Words capable of breaking peace

• Section 31 – Sexual harassment

• Section 34 – Possessing false document, giving false evidence, information or statement

• Section 36 – Anything intoxicating

• Section 37 – Gambling (withdrawn)

• Section 39 – Reducing scale, measurement and weight

• Section 40 - Executing transactions contrary to hukum syarak

• Section 41 - Executing transactions via usury

• Section 42 – Abuse of halal label and connotation;

• Section 43 – Offering or providing vice services,

• Section 44 – Preparatory act of offering or providing vice services

• Section 45 – Preparatory act of vice

• Section 47 - Act of incest

• Section 48 - Muncikari

Chronology of case

• 2021 - Amendments to the Kelantan Syariah Criminal Offences Enactment came into force

• May 2022 - Petition was filed by the Nik Elin and Tengku Yasmin on 20 provisions

• September 2022 - Federal Court grants leave

• August 2023 - First substantive hearing

• 20 November 2023 - Second substantive hearing

• 9 February 2024 - Decision

The petition follows the legal precedent in the Iki Putra case in 2021, where the Federal Court, the highest court in Malaysia, declared Section 28 of the Selangor Syariah Criminal Offences (sex against the order of nature) as null and void, on the grounds that the Selangor state government lacks legislative competency to enact the law.

Through the Nik Elin case, lawyers representing the Kelantan state government are also calling for a review of the Iki Putra decision.

The State List says

1. Except with respect to the Federal Territories of Kuala Lumpur and Labuan, Islamic law and personal and family law of persons professing the religion of Islam, including … 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; …

In the Iki Putra case, the Federal Court affirmed

“[46] If we were to adopt the rather simplistic approach advanced by the respondents that it is sufficient to simply satisfy ourselves that Section 28 of the 1995 Enactment is squarely encapsulated within the definition of ‘precepts of Islam’ without regard to the preclusion clause, that would render the preclusion clause otiose.”

Source: Federal Court decision on Iki Putra

Relevant Federal Constitution Articles

All laws in Malaysia must adhere to the following Articles & Part 2 of the Federal Constitution

74. Subject matter of federal and State laws

(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

(4) Where general as well as specific expressions are used in describing any of the matters enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.

75. Inconsistencies between federal and State laws.

If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

77. Residual power of legislation

The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament has power to make laws.

source: Federal Constitution

All laws in Malaysia must meet the constituionality test

Human rights impacts due to redundant and overlapping laws

The overlap of laws at the Federal and state levels has human rights impacts - it creates a restrictive environment for, among others, self-expression, access to services, and self-discovery; unnecessary policing and intrusion of the state into the personal lives of people; an environment of impunity.

The State at all levels have an obligation to uphold the rule of law, which includes the following principles:

• Accountability

• Open Government

• Just Law

• Accessible and Impartial Justice

• Equality before the law

The United Nations (UN) definition of Rule of law

“principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.”

Violation of Equality before the law [Article 8 (1) of the Federal Consitution]

The Federal Court in the Iki Putra case and UN treaty bodies have raised concerns over the breach of equality before the law as a result of overlapping laws.

Iki Putra decision

[20] … They [the respondents] argued to the effect that the Federal and State legislations on the same subject matter can co-exist and that as a result, the impugned provision is constitutionally valid….

[21] The essential difficulty that I have with this line of argument is that the equal protection of the law under Article 8 of the Federal Constitution ,... militates against the co-existence of the impugned provision and sections 377 etc. of the Penal Code on the same subject matter…

[24] It is hard to deny that a non-Muslim would be discriminated against by virtue of a Muslim having the benefit of a lesser sentence for a substantially similar offence under the impugned provision. Clause (1) of Article 8 of the Federal Constitution provides that all persons are equal before the law and entitled to the equal protection. Generally, Clause (2) of Article 8 provides that there shall be no discrimination against citizens on the ground only, among others, of religion.

Convention on Elimination fo All forms of Discrimination against Women (CEDAW)

In 2018, the CEDAW Committee in its concluding observations raised its concerns over the inconsistent application of CEDAW on the Federal and State.

“The Committee is also concerned that the lack of legal clarity and that the inconsistent application of the Convention is further compounded by the federal structure of the State party. The Committee is further concerned about the existence of a parallel legal system of civil law and multiple versions of Syariah law, which have not been harmonized in accordance with the Convention, as previously recommended by the Committee (see CEDAW/C/MYS/CO/2, para. 14), which leads to a gap in the protection of women against discrimination, including on the basis of their religion.

The Committee recommended Malaysia to

12.c Take effective measures to ensure that civil law and Syariah law are in full compliance with the provisions of the Convention at the local, state and federal levels so as to ensure that the rights of all women are legally guaranteed on an equal footing throughout the State party. The Committee reminds the State party that provisions of its internal law cannot be used as justification for its failure to abide by its obligations under the Convention;

Source: Concluding observations on the combined third to fifth periodic reports of Malaysia CEDAW/C/MYS/CO/3-5

Convention on the Rights of the Child (CRC)

15 .... The Committee observes that these two systems apply different definitions of the child, and that differences in implementing a child’s rights may result in legal disputes between non-Muslim mothers and fathers who have converted to Islam. It welcomes the establishment of the cross-sectoral Committee, which includes Muslim clerics, Syariah Court judges, legal practitioners, academics and government representatives to address the differences between the two legal systems. The Committee is concerned, however, at the slow pace of enacting and reforming the laws related to the implementation of the Convention.

16. The Committee recommends that the State party conduct an international comparative study on the implications of the dual legal system of civil law and Syariah law and, based on the results of this assessment, take necessary measures to reform this dual system with a view to removing inconsistencies between the two legal systems in order to create a more harmonious legal framework that could provide consistent solutions, for example, to family-law disputes between Muslims and non-Muslims. The Committee also recommends that the State party undertake a comprehensive review of the national legal framework with a view to ensuring its full compatibility with the principles and provisions of the Convention. The Committee further recommends that the State party take all necessary measures to expedite the process of necessary law reforms.

Source: Concluding observations CRC/C/MYS/CO/1

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What did the Federal Court say in the Iki Putra case

• [74] It is quite clear... Articles 74(3), 75 and 77 (state) that the primary power of legislation in criminal law resides in Parliament.

• This is further borne out by the State List in terms of the powers of the State Legislatures to enact criminal laws, namely that the powers are subjected to the preclusion clause in item 1 of the State List and item 9 of the State List.

• [81] … it can be postulated that having regard to the preclusion clause in item 1 of the State List, when the two Legislatures (Federal and State) legislate a law concerning the subject-matter of criminal law, and the two laws touch on the same matter, the said laws cannot co-exist even if the said law is said to be against the precepts of Islam.

• [87] As suggested during the hearing of this petition and by way of example: corruption and corrupt practices, rape, theft, robbery, homicide (including murder and culpable homicide) are all offences against the dictates, injunctions and precepts of Islam. The existence of the preclusion clause however serves to restrict the States from making laws on these subjects which, as rightly conceded by the respondents, remain within the domain of Parliament to regulate and enact within the general design curated by our Federal Constitution.

Overview of the Kelantan Syariah Criminal Code (I) Enactment 2019

Overview

The Kelantan Syariah Criminal Code (I) Enactment 2019 came into force on 1 November 2021, replacing the 1985 Enactment, which contained 35 sections. The 2019 Enactment contains 68 sections with an increase of punishment to at least 17 provisions from the previous Enactment. At least 19 provisions allow caning.

An analysis of the Enactment found that the many provisions

• Overlap with items in the Federal List and existing laws at the Federal Level, infringing the Federal Constitution, the supreme law of the land. The Federal Constitution has demarcated legislative powers of the Federal Government and the State Government under the Federal List and State List respectively.

• Violate fundamental liberties guaranteed by the Federal Constitution, including freedom of religion and belief, the right to life, which includes the right to privacy, the right to live with dignity, the right to livelihood, the right to be free from torture; the right to freedom of speech, and association as a result of unnecessary state intervention into all aspects of a Muslim person’s life, and by extension all persons regardless of religious background.

Read more here

Detailed Impugned Provisions

Impugned Provision	Encroached items under the Federal List	Overlap with existing Federal law
Section 5 – False claim	Item 3 Internal security, Item 4 Civil and criminal law and procedure and the administration of justice Item 22 Censorship	Section 124I. Penal Code - Dissemination of false reports Section 233. Communications and Multimedia Act 1998 - Improper use of network facilities or network service, etc.
Section 11 – Destroying or defiling place of worship	Item 3 Internal security, Item 4 Civil and criminal law and procedure and the administration of justice	Section 295.Penal Code - Injuring or defiling a place of worship with intent to insult the religion of any class
Section 13 – Selling or giving away child to non-Muslim or morally reprehensible Muslim	Item 4 Civil and criminal law and procedure and the administration of justice Item 14 Medicine and health including sanitation in the federal capital Item 1 in List III (Concurrent List) - Social welfare; social services subject to Lists I and II; protection of women, children and young persons.	Part VIII, Child Act 2001 - Trafficking In And Abduction Of Children Section 14, Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007
Sections 14-17 – Sodomy, sexual intercourse with corpse and sexual intercourse with non-human	Item 3 Internal security, Item 4 Civil and criminal law and procedure and the administration of justice	Section 377 Penal Code - Buggery with an animal Section 377A, Penal Code - Carnal intercourse against the order of nature Section 377B,, Penal Code - Punishment for committing carnal intercourse against the order of nature Section 377C, Penal Code - Committing carnal intercourse against the order of nature without consent, etc., Outrages on decency, etc. Section 377CA, Penal Code - Sexual connection by object, etc. Section 377D, Penal Code - Outrages on decency, etc. Section 377E, Penal Code - Inciting a child to an act of gross indecency
Section 30 – Words capable of breaking peace	Item 3 Internal security, Item 4 Civil and criminal law and procedure and the administration of justice Item 22 Censorship	Section 298 Penal Code, - Uttering words, etc., with deliberate intent to wound the religious feelings of any person Section 298A.Penal Code - Causing, etc., disharmony, disunity, or feelings of enmity, hatred or ill will, or prejudicing, etc., the maintenance of harmony or unity, on grounds of religion Section 233. Communications and Multimedia Act 1998 - Improper use of network facilities or network service, etc. Sedition Act 1948
Section 31 – Sexual harassment	Item 3 Internal security, Item 4 Civil and criminal law and procedure and the administration of justice	Section 509, Penal Code - Word or gesture intended to insult the modesty of a person Sections 81A to 81G of the Employment Act 1965 - Sexual Harassment Anti-Sexual Harassment Act 2022
Section 34 – Possessing false document, giving false evidence, information or statement	Item 4 Civil and criminal law and procedure and the administration of justice	Sections 191-200, Penal Code - False Evidence And Offences Against Public Justice
Section 36 – Anything intoxicating	Item 3 Internal security, Item 4 Civil and criminal law and procedure and the administration of justice Item 14 Medicine and health including sanitation in the federal capital	The Dangerous Drugs Act 1952 and/or The Food Act 1983
Section 37 – Gambling	Item 4 Civil and criminal law and procedure and the administration of justice	the Betting and Sweepstake Duties Act 1948, Lotteries Act 1952 and/or Common Gaming Houses Act 1952
Section 39 – Reducing scale, measurement and weight	Item 4 Civil and criminal law and procedure and the administration of justice Item 8(f)Trade, commerce and industry, including establishment of standards of weights and measures	The Weight and Measurement Act 1972
Sections 40 and 41 - Executing transactions contrary to hukum syarak and executing transactions via usury	Item 4(k) Civil and criminal law and procedure and the administration of justice , including Ascertainment of Islamic law and other personal laws for purposes of federal law Item 7 Finance	Islamic Financial Services Act 2015, Money Lenders Act 1951, Consumer Protection Act 1999, Contracts Act 1950, Sale of Goods Act 1957, Capital Markets and Services Act 2007 and/or The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001
Section 42 – Abuse of halal label and connotation;	Item 4 Civil and criminal law and procedure and the administration of justice Item 8 Trade, commerce and industry	Section 14, Food Act 1983 - Prohibition against the sale of food not of the nature, substance or quality demanded Section 15, Food Act 1983 Labelling, etc., not complying with standard of food, Section 16, Food Act 1983 False labelling, etc. Section 17, Food Act 1983 Advertisement
Sections 43-45 and 48 – Offering or providing vice services, preparatory act of offering or providing vice services, preparatory act of vice and Muncikari	Item 4 Civil and criminal law and procedure and the administration of justice	Section 372 Penal Code - Exploiting any person for purposes of prostitution, Section 372A Penal CodePersons living on or trading in prostitution, Section 372B, Penal Code Soliciting for purpose of prostitution
Section 47 - Act of incest	Item 4 Civil and criminal law and procedure and the administration of justice	Sections 376A and/or 376B, Penal Code - Incest & Punishment for incest

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Enakmen No.27 Tambahan 2 (31.12.20) (00000002).pdf

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