Federal Court's Ruling on Kelantan's Sharia Enactment – Which Sharia?

News

In August 2023, two lawyers, Nik Elin Zurina and Tengku Yasmin, filed a petition aiming to nullify 18 of the provisions within the Kelantan Shariah Criminal Enactment. These provisions, delineated under Islamic Sharia Law, are under the jurisdiction of the Kelantan State Legislature (DUN). On February 15, 2024, the Federal Court, in an 8-1 majority decision, ruled that 16 out of the 18 provisions under the Kelantan Sharia Criminal Enactment are unconstitutional. The court stated that the Kelantan DUN does not possess the authority to enact laws on these matters because federal laws already address the same provisions. This ruling underscores the supremacy of the federal constitution and carries implications for the administration of Islamic laws in Kelantan. The decision has elicited a variety of responses from the public. While some view it as a positive development for Malaysia’s legal framework, others perceive it as a breach of the state’s autonomy and a disruption in its governance based on “Islamic principles”.

Comment:

The crux of this case is simple—the overlap of jurisdiction between the DUN and the National Parliament. Nik Elin submitted a petition to the Federal Court, which then had to reference the constitution to make its decision. It found a jurisdictional conflict, where the DUN had enacted laws that fell under federal purview. Consequently, the 16 conflicting provisions were declared null and void. The decision has sparked debate, with some narratives suggesting that the Sharia is under threat, the authority of the Sharia Courts is diminishing, and Islam is in danger. For those disinclined to critical thinking, or who choose not to delve deeper, it is easy to be swayed by these narratives. Setting aside these emotionally charged narratives, a pivotal question arises: Are the current "Sharia courts" and "Sharia laws" truly Islamic? This question merits examination before addressing the perceived threats to Sharia, as it is essential to identify which interpretation of "Sharia" is being discussed.

The jurisdiction of Sharia Courts in all Malaysian states is regulated by the Sharia Courts (Criminal Jurisdiction) Act 1965 (Act 355), which caps punishments at imprisonment not exceeding three years, a fine not exceeding RM5,000, and whipping not exceeding six times (referred to as punishment 356). For instance, if a person is convicted of adultery, the maximum penalty can be six whippings, a fine up to RM5,000, or up to three years in prison. In contrast, Islamic law mandates whipping adulterers a hundred times, without recognizing fines or imprisonment for such offenses. Allah (swt) states:

[الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ]

“The woman and the man guilty of adultery, flog each of them with a hundred stripes” [An-Nur (24): 2]. This discrepancy also applies to many other cases covered by the nullified provisions, indicating that “Sharia decisions” are constrained by punishment 356, rather than based on the Quran or Sunnah.

Following the Nik Elin case outcome, calls to amend the constitution have intensified. This reaction is curious, as it implicitly elevates the constitution above Sharia. Critics lament the repeal of certain "Sharia laws" and ardently defend them, yet many have long upheld the constitution. It raises the question: Do they not recognize that the constitution, a product of British colonial rule, has been the very framework restricting the application of Sharia? Is it not paradoxical for parties to defend Sharia while also championing a constitution that limits its full enactment?

Moreover, the reaction to the Nik Elin case should not be seen as a "black day" for Muslims, as Malaysia does not fully implement Sharia. The real "black" period for Muslims began with the dissolution of the Khilafah on 28 Rajab 1342 H (March 3, 1924), marking the substitution of Sharia with secular systems imposed by colonial powers. The challenge now is to guide the nation out of these "black days." We must collectively endeavor to re-establish the State of al-Khilafah ar-Rashidah ala Minhaj Nubuwwah (rightly guided Caliphate upon the method of the Prophethood), where the divine guidance of Allah (swt) and the Sunnah of His Messenger are applied in their entirety, supplanting the prevailing secular laws and systems.

Written for the Central Media Office of Hizb ut Tahrir by
Dr. Mohammad – Malaysia