The Malaysian Federal Court recently declared a number of state Sharia laws in Kelantan as unconstitutional. After a petition from lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman, the court ruled that certain sections of the Kelantan Syariah Criminal Code (I) Enactment 2019 were not in line with the country’s constitution. The challenged provisions pertained to a range of offenses including desecration of places of worship, sodomy, sexual harassment, and use of intoxicating substances, among other crimes.
The petition was based on Article 4 of the Malaysian Federal Constitution, which affirms the Constitution as the fundamental law of the Federation, and posits that laws inconsistent with the Constitution are void to the extent of the inconsistency. The Malaysian Federal Court decision noted that the Kelantan state has no legislative rights to establish Islamic laws regarding such crimes, which fall under federal jurisdiction.
Federalism in Malaysia includes the concurrent existence of common law and Shariah law specific to Muslims, which is encapsulated in Article 121 of the Federal Constitution. While states can legislate on matters related to Islamic law, they are bound by the provisions of the Federal Constitution.
Nik Rashid celebrated the decision, arguing that it signified the supremacy of the Federal Constitution. Despite receiving death threats, she believes that her real objective was to “protect the sovereignty of the federal constitution.”
However, the verdict was criticized by the ruling party in Kelantan, Parti Islam SeMalaysia (PAS), and its supporters. The Secretary-General of PAS, Takiyuddin Hassan, reportedly referred to the day as a “Black Friday”- a sentiment that was condemned by Sisters In Islam (SIS), a Malaysian human rights organization, as harmful to the nation.
Chief Justice Tengku Maimun Tuan Mat clarified in her judgement that the case didn’t aim to undermine Islam, but instead questioned the issue in terms of constitutional law. The official judgement of the court is yet to be made public.