I. MISE-EN-SCENE

‘The power of Parliament and of State legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.’

- Lord President Suffian in Ah Thian v Government of Malaysia [1]

On the 9th of February 2024, the Federal Court decided in an 8-1 majority decision in Nik Elin Zurina bt Nik Abdul Rashid v Kerajaan Negeri Kelantan [2] (‘Nik Elin’) that 16 out of the 18 impugned provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019 [3] (‘Kelantan Syariah Criminal Code’) were ultra vires the Federal Constitution, and thus, null and void to that extent.[4] The sole dissenting judgment was delivered by the Chief Judge of Sabah and Sarawak, who dissented only on the limited issue of locus standi and not on the merits of the case.

This has attracted much attention within Malaysia’s political landscape, eliciting both praise and criticism. In particular, on the day of the decision, political figures from Parti Islam Se-Malaysia (‘PAS’) such as PAS secretary-general Datuk Seri Takiyuddin Hassan, stated that:

‘A black Friday to the syariah judicial system, and Islamic laws, that's all we can say. As a lawyer myself, I know that when the syariah criminal provisions in one state are nullified, similar provisions in 14 other states are also in critical danger.’[5]

He emphasized that such a nullification was not a petty matter. He further stressed the need to uphold the Syariah, and the Malay rulers as the head of Islam in their States as well as the Yang di-Pertuan Agong as head of Islam in the Federal Territories and the Federation.[6]

On the day of the judgment, a crowd gathered in front of the Palace of Justice, holding placards stating ‘Pertahan enakmen syariah Kelantan’ and other similar sentiments.[7] Alongside the crowd of 200 people exercising their freedom of speech were members of the opposition such as the aforementioned Datuk Seri Takiyuddin Hassan and Datuk Dr Radzi Jidin.[8]

While this author believes that freedom of speech is a constitutional right, it doesn’t necessarily protect inaccuracies and misrepresentations. This article serves to clarify any misconceptions surrounding the judgment that may have been misrepresented in public discourse. In addition, this article also highlights the principles laid down by the Nik Elin bench and their significance to the Malaysian legal landscape. Last but certainly not least, the author wishes to give a few of his commentary and opinions concerning the kerfuffle of the Nik Elin case.

II. FEDERAL-STATE POWERS

One argument raised by protestors is that the decision was an attack on the Syariah Courts and endangers the position of Islam as the official religion of the Federation, as quoted above by Datuk Seri Takiyuddin Hassan.[9] However, this case appears to focus on federal-state legislative authority rather than on the sovereignty of the Malay rulers or the status of Islam. One should expect that a practising lawyer could discern that the case concerns federal-state legislative capacity rather than the sovereignty or official status of Islam within Malaysia. Again, this highlights the need for constitutional literacy among all stakeholders.

The Article relevant to the discussion of legislative capacity is Article 74[10], which grants legislative authority to both Parliament and the State Legislative Assemblies for matters within the Federal and Concurrent List in the Ninth Schedule (for Parliament) and the State and Concurrent List (for the State Legislative Assemblies).

For this article, the relevant State List and Federal List matters are reproduced below:

Ninth Schedule - List II (State List)[11]

‘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]

Ninth Schedule - List I (Federal List)[12]

‘Civil and criminal law and procedure and the administration of justice, including—

a) Constitution and organization of all courts other than Syariah Courts;

b) Jurisdiction and powers of all such courts;

c)Remuneration and other privileges of the judges and officers presiding over such courts;

d)persons entitled to practise before such courts;

e)Subject to paragraph (ii), the following:

1. Contract; partnership, agency and other special contracts; master and servant; inns and inn-keepers; actionable wrongs; property and its transfer and hypothecation, except land; bona vacantia; equity and trusts; marriage, divorce and legitimacy; married women’s property and status; interpretation of federal law; negotiable instruments; statutory declarations; arbitration; mercantile law; registration of businesses and business names; age of majority; infants and minors; adoption; succession, testate and intestate; probate and letters of administration; bankruptcy and insolvency; oaths and affirmations; limitation; reciprocal enforcement of judgments and orders; the law of evidence;

2. the matters mentioned in paragraph (i) do not include Islamic personal law relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate.’

[Emphasis added]

The nature of the Federal Constitution with regard to Federal-State legislative capacity is arguably favourable to the Federal Government, which is intended by the country’s founding fathers.[13] As noted by the Federal Court in Iki Putra bin Mubarrak v Kerajaan Negeri (‘Iki Putra’), the Reid Commission Report drafted the Constitution to establish a strong central government while granting States some degree of autonomy.[14] This is somewhat complicated by the special positions of Sabah and Sarawak but their autonomy is not relevant for this article’s discussion.[15] In addition, reference can be made towards Article 75[16], which provides that in cases where federal and state laws are inconsistent, it is federal law that prevails. There are also instances where even if a matter falls within the State List, Parliament may still be able to legislate over such matters if it is necessary to implement any convention Malaysia becomes a signatory to[17], to promote legal uniformity[18], or if the State Legislative Assembly requests Parliament to legislate on such matters.[19] However, laws enacted under Article 76(1)(b) and Article 76(1)(c) do not become applicable law immediately within the states[20], and must first be adopted by their respective State Assemblies unless such matters concern land or local government (except for Sabah and Sarawak). In West Malaysia, the National Land Code and the Local Government Act 1976 govern these areas.

As emphasized above, when it comes to matters of Islamic personal law, the State Legislative Assembly has exclusive rights to legislate over such issues. This includes the punishment of Muslims for offences which are against the precepts of the religion. However, the phrase ‘except in regards to matters included in the Federal List’ expressly limits the State List. This means that the State Legislative Assembly cannot legislate on offences that are within the jurisdiction of Parliament and its Federal List, unless Parliament grants the State Legislative Assembly legislative authority for such matters.[21]

Next, it is important to define what it means to be against ‘the precepts of Islam’. Reference should be made to the case of Sulaiman bin Takrib v Kerajaan Negeri Terengganu (‘Sulaiman bin Takrib’)[22], where the Federal Court went to great lengths to examine the term, drawing on opinions from Islamic experts both from Malaysia and other countries. All three experts agreed upon the generality that ‘the precepts of Islam’ cover three aspects, namely, aqidah (belief), shariah (law), or akhlak (morality), all of which are derived from the Quran and the Sunnah.[23] The Court in Sulaiman bin Takrib favoured the opinions of Professor Dr Mohd Kamal Hassan and Tan Sri Sheikh Ghazali, which are reproduced as follows:[24]

A: Professor Dr Mohd. Kamal Hassan’s Opinion

‘2.2 In the context of the religion of Islam, the expression ‘precepts of Islam’ has a broad meaning to include commandments, rules, principles, injunctions – all derived from the Qur'an, the Sunnah of the Prophet, the consensus of the religious scholars (ijma) and the authoritative rulings (fatwas) of legitimate religious authorities, to ensure, preserve and/or promoting right beliefs, right attitudes, right actions and right conduct amongst the followers of Islam.

2.3 With regard to the scope of applicability of the precepts of Islam, human actions and behaviour fall into three major and interrelated domains, namely creed (aqidah), law (shari'ah) and ethics (akhlaq). The creed is concerned with right beliefs and right attitudes (deemed as actions of the heart), the law with right actions and ethics with right conduct, right behaviour and right manners.

2.4 Therefore the precepts of Islam possess the force of enjoining or commanding or prohibiting actions or behaviour which Islam considers good (ma'ruf) or bad (munkar), correct or deviant, obligatory (wajib), recommendatory (sunnah) undesirable (makruh), permissible (halal), prohibited (haram), allowable (mubah).’[25]

B: Tan Sri Sheikh Ghazali’s Opinion

‘“Precepts of Islam” bermaksud ajaran-ajaran atau perintah-perintah agama Islam sebagaimana yang terkandung di dalam al-Quran dan as-Sunah. Ia bukan hanya terhad kepada rukun Islam yang lima. Ajaran Islam meliputi “Aqidah, Syariah dan Akhlak.”’ [26]

The Court further noted that in Malay, the Federal Constitution denoted Islamic law as Hukum Syarak and the terms are used interchangeably.[27] It also provided clarification on the definition of a ‘Syariah offence’.[28] A ‘Syariah offence’ must be confined to Muslims only, must be against the precepts of Islam, must not be included within the Federal List, and must be within the limits provided by Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965.[29] Thus, an offence may be against ‘the precepts of Islam’, but if it falls within the Federal List of the Ninth Schedule, the State Legislative Assembly does not have legislative capacity.

With the stage set, let us now look at the ‘challenge to the Syariah Court and Islam’ as the critics have put it.

III. A SIMPLE CASE MIRED IN POLITICS

The Federal Court had a straightforward case before them: whether the 18 challenged provisions of the Kelantan Syariah Criminal Code were ultra vires the Federal Constitution. The Federal Court, under its original jurisdiction as outlined in Articles 4(3), 4(4), and 128(1), reviewed the petition challenging the constitutionality of 20 provisions in the Kelantan Syariah Criminal Code.

The Court in Nik Elin has acknowledged, in line with the Supreme Court’s decision in Mamat bin Daud v Government of Malaysia (‘Mamat bin Daud’)[30], the difficulty in demarcating the lines between a criminal offence and an offence against the precepts of Islam.[31] It advocated for a case-by-case approach when assessing impugned provisions,[32] aligning with the approach taken by the Court in Sulaiman bin Takrib.[33]

Thus, in line with Mamat bin Daud, the Nik Elin bench employed the pith and substance test in determining the constitutionality of the impugned provisions. Firstly, the Court needed to determine whether the provision was a ‘religious offence’. As per Iki Putra, a ‘religious offence’ relates to aqidah, the sanctity of Islam and its institutions, or one relating to Islamic morality.[34] The second step requires the Court to determine whether the offence is a ‘purely religious offence’ by comparing it with the general features of ‘general criminal law’.[35] If the offence applies only to Muslims, was enacted only for Islamic law or religious reasons, and is confined only to the religion of Islam relating to the aqidah, sanctity of Islam, or relating to Islamic morality, then it is a ‘purely religious offence’ and is validly enacted by the State.[36]

Employing the pith and substance test, if a religious offence can be deemed as applying elements of general criminal law relating to public order, safety, health, security and morality, it cannot be a ‘purely religious offence’ and is invalid.[37]

For instance, consider one of the challenged provisions: Section 30 of the Kelantan Syariah Criminal Code. Section 30 criminalizes a person for uttering or disseminating wilfully, words contrary to hukum syarak which is likely to cause a breach of peace in any place and shall be liable to a fine of not more than RM3,000 and imprisonment of not more than two years or both.[38]

While the Federal Court noted that it has the element of public order,[39] it emphasized the preceding phrase: ‘any person who willfully utters or disseminates words contrary to hukum syarak…’. Under Article 11(4) and Item 1 of the State List, State Legislative Assemblies have the authority to legislate on the control of propagating doctrines and beliefs among Muslims. This is inclusive of any views contrary to the accepted tenets of hukum syarak in Malaysia such as the Ahmadi Muslims who are restricted from propagating their beliefs.[41] Thus, the Federal Court held that this section purely deals with the restriction of propagation of false doctrines and teachings by alleged Muslims to other Muslims,[42] and is therefore constitutional.[43]

Ergo, the Court will invalidate State provisions when, in pith and substance, they pertain to matters that fall within the Federal List of the Ninth Schedule,[44] and are not ‘purely religious offences’.

IV. JUDGES, RELIGION & THE LAW

Admittedly, this writer is not a Muslim and does not understand the intricacies of how a Muslim should conduct themselves, and would therefore hesitate to comment on such practice. However, it would be remiss to avoid discussing a potentially dangerous precedent set if a judge can set aside the law in favour of their personal morality and beliefs.

Firstly, whose morality or ethics should apply in a court of law? Should judges apply their personal religious beliefs and ethics if it is in contradiction with the law? Suppose a situation where the law clearly dictates outcome A, but due to religious beliefs, the judge decides on outcome B, disregarding numerous statutes, case laws as well as the founding document of the country. Consider further the following situation, where each judge deciding upon a case has different religious and ethical beliefs, leading to inconsistent and uncertain outcomes. Such a situation would undermine confidence in the judiciary, and nobody would resort to the Courts to resolve conflicts. Additionally, it effectively allows judges to act as quasi-legislators, whereby they can make and apply the law according to their morals as they please. This would effectively destroy any semblance of separation of powers, and weaken the government’s ability to function effectively.

That is not to say this writer rejects the notion of morality or ethics playing an integral role within the field of law. Historically, equity arose from Christian laws to temper the harshness of English common law and make unjust results just.[45] In fact, even legal positivists such as H.L.A. Hart pointed out that moral and ethical considerations could exist as a criteria of recognition within legal positivism.[46] But as Hart and his fellow legal positivists pointed out, there needs to be certainty within the law. That means identifying what law is as opposed to things that look like law but are not law such as morality, ethics or even customs.

Therefore, if judges are able to resort to their own moral compass to which there are no universal standards, whose moral standards should they follow? Given the multiplicity of faiths and beliefs ranging from Islam, Christianity, Hinduism, Buddhism, and various indigenous beliefs, judges should rely on the Federal Constitution and legislation derived from it as their guiding standards, rather than personal religious beliefs. To serve a multicultural and multireligious society, there needs to be a standard that exists for judges to judge by, and personally, a religious creed belonging to only one of the judges cannot serve that purpose adequately.

Another issue that has become ruthlessly politicised is the issue of Islam and Malay identity. In particular, political and online pundits have decried the decision as an attack upon the sovereignty of the Malay Rulers and Islam as the official religion of the Federation to the point of death threats against the petitioners in Nik Elin.[47] It would be remiss of this writer to not lambast such an act as it serves to inflame the already precarious situation we have in Malaysia and leads to many misconceptions and falsehoods about the Courts, the Federal Constitution and the nature of Islam in Malaysia.

Ultimately, the role of the Courts is to interpret and protect the Federal Constitution and the law. To quote Tun Salleh Abas LP in Che Omar Che Soh v PP,

‘However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.’[48]

Judges cannot make law on their own. This remains the responsibility of Parliament or the State Legislative Assemblies to legislate on behalf of the Syariah Court to confer its jurisdiction. If one is concerned with the scope of Syariah jurisdiction, a more constructive approach would be to reach out to Members of Parliaments or State representatives to advocate for amendments to laws like the Syariah Courts (Criminal Jurisdiction) Act 1965,[49] and their state Syariah legislations. Such an approach would be more effective to reduce possible overlaps between federal and state lawmaking rather than engaging in actions that create unnecessary conflict.

V. LOCUS STANDI & ITS APPLICATION

The majority decision in Nik Elin marks a hallmark decision with the Federal Court opting for a more liberal approach towards locus standi (the right of an individual to have legal standing). The Court affirmed the approach established in Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises (‘Trellises’),[50] where the Federal Court there departed from the majority decision of Government of Malaysia v Lim Kit Siang (‘Lim Kit Siang’)[51] with regard to locus standi. The Supreme Court in Lim Kit Siang adopted a restrictive approach towards locus standi, whereby the plaintiff must have an interest in the issues raised in the proceedings. Alternatively, in the event they rely on an interest in the enforcement of a public right, the plaintiff must demonstrate a special interest beyond that possessed by the public generally.[52]

The bench in Nik Elin instead adopted the approach of the dissenting judgements of Seah SCJ and Abdoolcader SCJ in Lim Kit Siang, aligning with the decision in Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd.[53] Seah SCJ described the rule as regards locus standi as ‘a rule of practice and procedure laid down by judges in the public interest. Like all rules of practice they are liable to be altered by the judges to suit the changing times.’[54] This perspective marked a departure from the majority judgement in Lim Kit Siang, which failed to appreciate its earlier decisions in Tan Sri Haji Othman Saat v Mohamed bin Ismail[55] and Lim Cho Hock v Government of Perak.[56] Abdoolcader SCJ, akin to Nostradamus, noted that the majority’s failure to appreciate its previous decisions and its closing of the door on public litigation would eventually be reconsidered (as it is currently).[57]

In Trellises, the Federal Court held that Order 53 of the Rules of Court 2012 provides a single threshold test to determine whether a person has locus standi being that he is ‘adversely affected’.[58] ‘Adversely affected’ is defined as per Malaysian Trade Union Congress v Menteri Tenaga, Air dan Komunikasi[59] as being an applicant having a ‘real and genuine’ interest in the matter, without the need to prove the infringement of a private law right or the suffering of special damages.

Notably, the sole dissenting opinion in Nik Elin came from Chief Judge Tan Sri Dato' Abdul Rahman bin Sebli, where His Lordship held that the petitioners did not meet the criteria for locus standi. His Lordship pointed out that there are two stages for locus standi.[60] Firstly, at the leave stage, locus standi should exclude ‘busybodies, cranks and other mischief-makers’ (per Lord Scarman).[61] Secondly, if leave is granted, the Court may consider locus standi once again as part of the hearing of the merits of the case to ensure that the petitioner has ‘sufficient interest’.[62] His Lordship relied on Nallini Pathmanathan FCJ’s decision in Datuk Seri Anwar Ibrahim v Government of Malaysia.[63] Her Ladyship emphasised that applicants in constitutional challenges must establish not only that they are ‘adversely affected’ and possess a ‘genuine interest’ but also that there is an arguable violation of their constitutional rights to give rise to locus standi.[64] A violation of a constitutional right would give rise both to a ‘real interest’ for a party to bring the action and a ‘real controversy’ between the parties to the action.[65]

His Lordship remains in line with the approach of the Federal Courts by embracing a liberal approach towards locus standi. However, His Lordship differed from the Nik Elin bench in the application of the test, stating that the Trellises case involved an application of judicial review of the decision of a public authority whereas the present case involves a constitutional challenge thereby necessitating standing under Article 4(4) of the Federal Constitution. For constitutional challenges, applicants must show a real and actual violation of their constitutional rights for the Court to exercise original jurisdiction under Article 128(1)(a) of the Federal Constitution.[66] As the petitioners failed to point out which constitutional rights are or have been violated by the impugned provisions,[67] His Lordship contended that they thus lack locus standi.[68]

It goes without saying that the liberal approach towards locus standi will encourage more public interest litigation, potentially advancing the protection of human rights including constitutional rights, environmental rights and such.

VI. CONCLUSION

The landmark decision of the Federal Court has led to much debate among the Malaysian public with regard to the Judiciary, its relationship with the Syariah Courts, Federal-State legislative capacity, and the Federal Constitution. There has been much academic dishonesty online regarding the decision, and this author hopes this article has served to clarify certain matters. In particular, this writer wishes to inform that while everyone has the right to freedom of speech, he would highlight that such freedom carries the risk of spreading potential misinformation and divisive rhetoric. Despite the freedom of speech being a fundamental liberty, this liberty comes at a cost and may increase ethno-religious tensions resulting in outcomes that are undesirable for all. This writer is not asking readers to vote for the current administration; it is the administration that has to work to obtain the votes of the people. However, in light of the increasing polarization of the country, it is wise to check our biases and preserve social order.

This writer would like to thank ‘Umar bin Ammar as well as Dr Sheila Ramalingam for their encouragement, support and assistance in reading and providing comments for this article. Without their help, this article would not have been completed.