Law being challenged not ordained by Allah, but by the State Legislature: Chief Justice

The civil court verdict in allowing the challenge of certain provisions in Kelantan Syariah law cannot be considered as opposing Allah, says Chief Justice Tun Tengku Maimun Tuan Mat.

(NST) – The top judge said the law being challenged was not determined or ordained by Allah, but by the State Legislature implemented by the Syariah Court.

“If this case is viewed from this perspective, there is no question that the Civil Court is not upholding the position of Islam or not empowering the Syariah Court.

“The issue we need to decide is whether the Kelantan State Legislature made those provisions within the limits set by the Federal Constitution or otherwise.

“In other words, the issue before us does not concern the position of Islam or the Syariah Court in this country.

“Whether Islam or the Syariah Court is upheld or otherwise is not a question in this petition.

“The Syariah Court or Islamic law will never be buried and laid to rest because the Federal Constitution has guaranteed legislative power to all state government to enact laws implemented by the Syariah Court,” she said.

Tengku Maimun, who leads a nine-member panel of judges, said this when delivering the majority verdict of 8-1, ruling that 16 out of 18 provisions under the Kelantan Syariah Law were unconstitutional.

She said the legislative powers of the Federal and State governments have been determined by the Federal Constitution in the Federal List and State list.

“Neither parliament nor the state legislative bodies can enact laws beyond their respective lists.

“To determine whether laws made by Parliament, or the state legislative bodies are valid and fall within the scope of their powers, the applicable test is the ‘pith and substance’ of the provision.

“After examining the arguments of the parties and applying the principle of ‘pith and substance’, we conclude that Section 13 and Section 30 are valid as they pertain to matters within the legislative the respondent to enact.

“While the other challenged sections are deemed invalid because the ‘pith and substance’ of those provisions concern matters under the Federal List, which only Parliament has the authority to legislate,” she said.

Other members of the bench were Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli, and federal court judges Tan Sri Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan, and Datuk Abu Bakar Jais.

Abdul Rahman was the only judge who dissented with the majority.

The constitutional challenge was initiated by Nik Elin Zurina Nik Abdul Rashid, a lawyer born in Kelantan, and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman on May 25, 2022.

They utilised Article 4(4) of the Federal Constitution to directly approach the Federal Court, listing the Kelantan state government as the respondent.

The legal challenge had drawn flak from various Islamic religious societies, with some condemning the act and describing it as a betrayal of Islamic principles.

About 200 people have gathered in front of the Palace of Justice with tightened police security around the premises amid the decision’s anticipation.

Chants of ‘Takbir’ and ‘Allahuakhbar’ rang out among the crowd who held up placards that read ‘Pertahan enakmen syariah Kelantan’ (protect Kelantan’s Syariah enactment) and ‘Selamatkan Syariah’ (save syariah) at Putrajaya Square.

Some of them brought their children to show support for the gathering.

Several opposition political bigwigs were also seen at the gathering, including Pas secretary-general Datuk Seri Takiyuddin Hassan and Parti Pribumi Bersatu Malaysia (Bersatu) vice-president Datuk Dr Radzi Jidin.