By Our Correspondent
NEW DELHI—A recent judgment of Malaysia’s Federal Court holding 16 Islamic laws in the north-eastern state of Kelantan as unconstitutional has sparked a major controversy in the South-East Asian country, as the Opposition Parti Islam SeMalaysia (PAS), ruling Kerlantan since 1990, has accused the country’s top court of acting with prejudice against the religion of Islam.
The 16 laws invalidated in the court’s ruling of February 9 included those related to gambling, incest, destroying a place of worship, sodomy, and sexual harassment, all of which are covered by federal laws. The PAS has announced that it will raise the issue in the Parliament’s next session later this month.
The Federal Court ruled by 8-1 majority that the Kelantan state government did not have the power to enact the laws, based on Islamic Shariah, because they were already covered in civil law and were the responsibility of the Federal Parliament.
In the federal structure of Malaysian government, the states have jurisdiction over laws related to Islam, which is the country’s official religion. Malaysia operates a dual legal system where Islamic law applies to Muslims, who make up just over 60% of the population, in personal and family matters, as well as the practice of their religion. All other offences are handled by the civil courts.
Kelantan, considered the heartland of ethnic Malay Muslim culture, has been ruled by the Opposition PAS since 1990. Chief Justice Tengku Maimun Tuan Mat, heading the nine-Juge Bench of the Federal Court, ruled that the powers of Parliament and state legislatures were limited by the Federal Constitution and they could not enact any laws they liked.
The case was brought in 2022 by Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter after the state government passed a new set of laws on Islamic offences. The mother-and-daughter petitioners challenged the constitutionality of 18 of the laws arguing that they were beyond the jurisdiction of the State Assembly, as they were already covered by the Parliament.
The Federal Court did not strike down the two other laws, after holding 16 pieces of legislation as unconstitutional, and the Chief Justice, who is the first woman to head the top court, stressed that the two women petitioners had not brought the case to challenge the position of Islam or the Islamic legal system.
About 1,000 people, including PAS supporters and prominent Muslim citizens, gathered outside the Federal Court in Putrajaya ahead of the ruling. Takiyuddin Hassan, PAS secretary-general and a Member of Parliament, criticised the ruling and said the party would raise the issue in the Parliament when it assembles for its next session later in February.
The PAS has been pushing for broader jurisdiction for Shariah law, including the implementation of harsh penalties for crimes under Hudud, the penal laws of Islam, and the Federal Court’s judgment is seen as a setback for this. The verdict may trigger a string of petitions to challenge the legality of Shariah laws in other states of Malaysia.
Significantly, the PAS derives its political strength by presenting alternative legal, political, social and cultural models to those who see the present systems in Malaysia as un-Islamic. The party finds it hard to accept limits to the states’ power in enacting laws. The Federal Constitution says that states have the power to enact laws which touch on offences against the precepts of Islam.
However, laws on civil and criminal matters and procedures, and the administration of justice, come under federal jurisdiction. The Kelantan State Assembly overstepped its limits when it passed amendments to its Shariah laws in 2021, which were challenged in the Federal Court.
While holding that the state legislatures could not make any laws they like, the Chief Justice said the present case, contrary to erroneous and politically fueled suggestions, had absolutely nothing to do with undermining the religion of Islam.
The Chief Justice had earlier this year also talked about politicians trying to undermine the legal process in cases involving Islam. In her address at the Opening of the Legal Year 2024 on January 15, she pointed out that the comments by “certain irresponsible parties” were targeted at painting the picture that the Judiciary had an agenda or motives to eradicate Islam in Malaysia, or an agenda to remove the Islamic legal system in the country.
The judiciary has been trying hard to keep its reputation intact. The Malaysian government’s Shariah Judiciary Department has clarified that the landmark judgment on the Kelanthan criminal laws will only strengthen the Islamic law. It will also harmonise offences which exist under both the Shariah and civil laws, according to the department.
“The cancellation of the 16 provisions is only because it goes beyond the jurisdiction given to the State Assembly. This decision can also be described as a strengthening of the Islamic law in Malaysia when the Federal Court in its judgment states that the punishment found in the Shariah Court is parallel to the Penal Code in the Civil Court. The indication is that there has been a harmonisation between Civil and Shariah jurisdiction,” the department said in a statement.
The Shariah Judiciary Department explained that the court’s decision in the case of Nik Elin only involved the jurisdiction of the federal and state governments to legislate for offences. It did not, however, mean that Muslims in Kelantan could not be punished for committing those crimes. “It just cannot be tried in the Shariah Court, but it can be tried in the civil court. If a Muslim in the state of Kelantan commits a mahram offence, the offence can be tried in a civil court,” the statement read.
The punishment provided in the Penal Code is also higher, compared to the punishment provided in the Kelantan Shariah Criminal Code Enactment. “For the offence of adultery, when the court declares it invalid and void, it does not mean that adultery is no longer an offence for Muslims in Kelantan. It is invalid because the law has been provided for in the Penal Code, which is a federal law,” the Shariah Judiciary Department added.
