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Introduction
The Federal Court’s ruling in Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan (‘Nik Elin’)[1] brought to the fore yet again the intricate Federal-State division or distribution of legislative and executive powers bestowed under the Federal Constitution, particularly in relation to Islamic personal law. There are three main aspects to this case: the procedural aspect, the standing aspect, and the substantive aspect.
The salient facts
The appellants were to all intents and purposes residents of the State of Kelantan. They sought a declaration from the Federal Court that 18 [2] provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019 were unconstitutional, as they provided for matters with respect to which the Kelantan State Legislative Assembly had no power to make laws. The appellants contended that these provisions were therefore void under Article 4(1) of the Federal Constitution.
The procedural aspect
The Federal Court possesses exclusive original jurisdiction to hear matters,[3] albeit a very narrow and limited one, exercisable only in two instances. The first instance involves disputes on any question between States or between the Federation and any State.[4] Such cases may be filed directly, in the first instance, in the Federal Court, without first obtaining leave to file such a case.
The second instance, as in the case of Nik Elin, involves incompetency challenges filed by a party other than a State or the Federation. Incompetency challenges is where a petitioner seeks to declare a law as invalid on the ground that Parliament or the State Legislature of any State had no power to make such a law. This should be distinguished with inconsistency challenges, ie where a party challenges a law or an action that is inconsistent with any of the provisions of the Federal Constitution. Inconsistency challenges may be filed as any ordinary case in the High Court. Incompetency challenges, on the other hand, can only be filed after a single judge of the Federal Court has granted leave to file the petition (where the petitioner is not a State or a Federation).[5] The leave application operates as a filter to determine that only the appropriate cases go before the Federal Court.
In Nik Elin’s case, since the petitioners were individuals (not the State or the Federation) bringing an incompetency challenge against the Kelantan State Government, the correct procedure would be for the petitioners to first obtain leave before a single judge of the Federal Court to file their petition in the Federal Court.[6] This procedure was duly complied with.
The standing aspect
One of the issues raised by the respondent in this case was that the petitioner had no locus standi to file the petition as they were mere ‘busybodies’. This aspect was pivotal to one of the Federal Court judges hearing the matter, which resulted in an entire dissenting judgment on this aspect alone. The dissenting judgment meant that the final decision of the Federal Court was not a unanimous decision, but only a majority decision of 8:1. However, it is important to note that the dissenting judgment was not on the substantive aspect of the case, but only on the standing aspect.
The majority decision of the Federal Court took a liberal view of locus standi, following its earlier decision in Datuk Bandar Kuala Lumpur v Perbadanan Trellises & Ors and other appeals[7] which was a case on administrative judicial review. The majority decision opined that locus standi should be adjudged on even broader principles when it involves constitutional judicial review, as in the present case. This is because Article 4(1) of the Federal Constitution does not restrict the personality of the litigants wishing to challenge the constitutional validity of legal provisions.[8]
The substantive aspect
Out of the 18 provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019, 16 were declared to be unconstitutional, a summary of which is as follows:
Table 1: Summary of provisions declared as constitutional
Constitutional | |
Section 13 | Selling or giving away a child to a non-Muslim or to a morally reprehensible Muslim |
Section 30 | Words capable of breaking the peace |
Table 2: Summary of provisions declared as unconstitutional
Unconstitutional | |
Section 11 | Destroying of defiling a place of worship |
Section 14 | Sodomy |
Section 16 | Sexual intercourse with a corpse |
Section 17 | Sexual intercourse with a non-human |
Section 31 | Sexual harassment |
Section 34 | Possessing false document, giving false evidence, information or statement |
Section 37 | Gambling |
Section 39 | Reducing scales, measurements and weights |
Section 40 | Executing transactions contrary to ‘hukum syarak’ (syariah law) |
Section 41 | Executing transactions contrary to 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 | Incest |
Section 48 | Muncikari (person who acts as a procurer between a female and a male for a purpose which is contrary to ‘hukum syarak’ (syariah law)) |
The decision of the Federal Court had to do purely with the Federal-State distribution of legislative and executive powers, and nothing to do with the religion of Islam per se. Under the Federal Constitution, Parliament has exclusive legislative powers over the matters stated in the Federal List (List I) of the Ninth Schedule to the Federal Constitution, whilst the State Legislative Assemblies have exclusive powers over the matters stated in the State List (List II) of the Ninth Schedule to the Federal Constitution.
Item 1 of List II (State List) of the Ninth Schedule to the Federal Constitution provides for Islamic law and personal and family law of persons professing the religion of Islam, as follows:
Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non- charitable trusts; Wakafs and the definition and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, 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 constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law; the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom. (emphasis added)
It is clear therefore that except for the three Federal Territories that is Kuala Lumpur, Putrajaya and Labuan, ‘Islamic personal law’ which are only those matters prescribed in Item 1 of List II (State Law) is a matter that falls under the jurisdiction of each individual State in Malaysia. It may perhaps be useful to emphasize that in so far as State legislative powers are concerned, States are only empowered to legislate on ‘Islamic personal law’ that are specifically itemized in Item 1 of List II (State Law). Hence, there may be other areas which involve Islamic law or principles (for example Islamic banking)[9] which the States have nevertheless no power to legislate on.
In so far as criminal law is concerned, the States’ powers to administer Islamic criminal law is subject to severe limitation. First, they have jurisdiction only over persons professing the religion of Islam. Second, though State legislation may create and punish offences ‘against the precepts of Islam’, the offences created and punished must not be in the Federal List (List I) or be covered by Federal law. Third, Item 4(h) of the Federal List (List I) provides for ‘civil and criminal law and procedure and the administration of justice, including… creation of offences in respect of any of the matters included in the Federal List or dealt with by federal law’. Thus, the criminal jurisdiction of the Syariah courts (ie the persons they may try, the offences they may try and the penalties they may impose) must be prescribed by Federal law. The relevant Federal law is the Syariah Courts (Criminal Jurisdiction) Act 1965 [10] which limits the penalties to a maximum of three years’ imprisonment, six strokes of the cane and a fine of up to RM5,000.
The existence of Item 1 of List II (State List) of the Ninth Schedule to the Federal Constitution essentially means that Muslims in Malaysia are subject to both civil laws as well as Syariah laws. However, it is not always so clear-cut as to whether an offence falls within the legislative purview of Parliament or State legislatures. In order to determine this issue, the courts have devised a test known as the ‘pith and substance’ test.[11] This is where the court will determine whether an offence is in ‘pith and substance’ an offence that falls within the purview of Parliament or State legislatures.
The legal position may be stated thus: Islamic matters are entirely within the State legislative power; in no circumstances can Parliament encroach upon such matters. The reverse is also then true – that in no circumstance can the State legislatures encroach upon matters exclusively within Parliament’s domain, which are the matters stated in the Federal List (List I). In determining whether a particular offence is within the legislative competence of Parliament or State legislatures, the courts will look at the ‘pith and substance’ of the offence. An offence may be against the ‘precepts of Islam’, but if such an offence nevertheless falls within Parliament’s purview, State legislatures are incompetent to legislate on such matters.
This position has been made abundantly clear in the summary provided by the Federal Court in Nik Elin: [12]
For convenience, we would summarise the principles alluded to above, as follows:
(a) first, determine whether the impugned section legislated by the State Legislature is an offence against the ‘precepts of Islam’ which constitutionally refers to one of the two broad categories;
(b) the first broad category relates to any matter specifically referenced in item 1 of the State List and to other relevant provisions in the FC. If the impugned section in pith and substance can be referenced to any of item 1 or any other relevant provisions in FC, 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;
(c) the second broad 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;
(d) 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 this country, for example, someone claims that he is a Prophet, then it is within the State Legislature’s power to make it; and
(e) 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. Examples of these offences are 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 this country.
Key takeaways
It is therefore clear that in order for States to have legislative competence to enact criminal offences under Islamic law, it must meet two important criteria: first, the offence must be against the precepts of Islam; and second, it must be an offence which is precluded from the Federal List (List I).
In other words, if a particular offence is against the precepts of Islam, but comes under the purview of Parliament, then State legislatures have no power to legislate on such matters. This includes offences that are within Parliament’s purview which has not been criminalised by Parliament. Just because Parliament does not criminalise a particular offence, does not give States the automatic right to criminalise the offence. It still remains Parliament’s legislative powers, and such powers cannot vest in the States by default.
References
[1] [2024] 2 MLJ 150.
[2] The original petition contained 20 provisions, of which two provisions, that is, ss. 5 and 37(1)(a) were withdrawn.
[3] See Articles 4(3), 4(4) and 128(1) of the Federal Constitution.
[4] See in particular, Article 4(3) of the Federal Constitution.
[5] See in particular, Article 4(4) of the Federal Constitution.
[6] Ibid.
[7] [2023] 3 MLJ 829.
[8] See in particular, page 170[24], [26].
[9] See Item 7(j) of List 1 (Federal List) of the Ninth Schedule to the Federal Constitution.
[10] Act 355.
[11] See for example Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 and Iki Putra Bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 323.
[12] [2024] 2 MLJ 150, at 191-192[121].
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