MCCBCHST - Accept Federal Courts Decision in Nik Elin Zurana's Case

Date: 14 March 2024

MEDIA STATEMENT

1. Kelantan State Government should accept the Federal Court decision in Nik Elin Zurina’s case;
2. Article 3(1) refers to Islamic ‘Rituals and Ceremonies’ and not to Islamic way of life as generally understood.

1. The Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST) refers to the passing of a motion by the Kelantan legislative assembly to re-enact 16 provisions in the Kelantan state’s Syariah Criminal Code (1) Enactment 2019 which were nullified by the Federal Court in the case of Nik Elin Zurina Binti Nik Abdul Rashid & Another v Negeri Kelantan, the judgement of which was delivered on 9th February, 2024. The Federal Court judgement was with a 8-1 verdict of the 9 judges, the judge dissenting was “on the sole ground that the petitioners had no locus standi to the petition”.
    
2. The Federal Court in Nik Elin Zurina’s case had ruled that the Kelantan’s legislature had exceeded its state-making power contained in the State List (List II) of the Ninth Schedule of the Federal Constitution when it enacted 16 provisions that is sections 11,14,16,17,34,36, 37 (i)(b), 39, 40, 41, 42, 43, 44,45,47 & 48 and that the said provisions were accordingly null and void as there was already a federal law in existence on the same matter as provided for in Federal List I, where only Parliament has power to legislate.
    
3. The Kelantan state legislature must realise that it is bound by the Federal Constitution and the Federal Court decision. Since Federal Court in Nik Elin Zurina’s case has ruled that the 16 stated Sections of the Kelantan Syariah Criminal Code (1) Enactment, 2019 are void, then to enact the same impugned sections would be void too. Kelantan State legislative assembly in passing the said motion is posing a challenge to the Federal Constitution, the Federal Court and the Rule of Law. Here the Attorney General as the Guardian of the Law and the Public interest should warn the Kelantan State Government about their unconstitutional move to re-enact the said 16 impugned sections and thus not respecting and following the Federal Court decision.
    
4. The present Federal Court decision in Nik Elin Zurina’s case is based on earlier Federal Court decisions, as below:
   (i) In Che Omar bin Che Soh V. Public Prosecutor (1988) 2 MLJ the Federal Court held that “the term ‘Islam’ or ‘Islamic’ religion in Article 3 of the Federal Constitution in
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   the context means only such acts as related to “rituals and ceremonies”. The court further stated that Islam is not “just a mere collection of dogmas and rituals but it is a complete way of life…But during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only. In our view, it is in this sense of dichotomy that the framers of the constitution understood the meaning of the word “Islam” in the context of Article 3”.
    
   Note:
   (a) For purposes of Article 3(1) “Islam is the religion of the Federation”, only refers to Islamic “rituals and ceremonies” and not “Islamic way of life as generally understood covering all fields of human activities”.
   (b)Thus the dichotomy between the “ritualistic” aspect and the “comprehensive system of life” was resolved in Che Omar B. Che Soh
   case as above.
    
   (ii) In Mamat Bin Daud & Ors V Government of Malaysia (1988) 1 MLJ 119, the Federal Court stated at Page 123: “…. It is the substance and not the form or outward appearance of the impugned legislation which must be considered. The impugned statute may even declare itself as dealing with religion but if on investigation as a whole it is in fact not so, the court must so declare”.
   (iii) Suffian L.P. stated in Ah Thian V Government of Malaysia (1976) 2 MLJ that “…Parliament and State Legislative in Malaysia is limited by the Constitution and they cannot make any law they please”.
   (iv) In Indira Gandhi a/p Mutho V. Pengarah Jabatan Agama Islam Perak & 2 ors (2018) the Federal Court unanimously approved the earlier decision of the Federal Court in Che Omar Che Soh’s case and stated: “It is clear therefore that the jurisdiction of the Syariah Courts in so far as the operation of Islamic law is concerned, is confined to the private aspect and does not extend to its public one. Ultimately, the subject matter is one of personal rather than constitutional law”.
   (v) In Iki Putra bin Mubarak V Kerajaan Negeri Selangor & Anor (2021) the Federal Court unanimously held “…the subject matter upon which section 28 of the 1995 Enactment was made falls within the preclusion clause of item 1 of the State List. As such, it is our view that the said section (section 28) was enacted in contravention of item 1 of the State List which stipulates that the State Legislature have no power to make law in regard to matters included in the Federal List’. To that extent, section 28 of the 1995 Enactment is inconsistent with the Federal Constitution and is therefore void.
    
5. Basic structure of the Constitution.
   (A) In Indira Gandhi A/P Mutho vs Pengarah Jabatan Agama Islam Perak (2018), the Federal court made the following unanimous ruling (Pg.52):
   (i) The Federal Constitution is premised on certain underlying principles including the separation of powers, the rule of law and the protection of minorities.
   (ii) These principles are part of the basic structure of the Constitution. Hence, they cannot be abrogated or removed.
   (iii) The judicial power of the civil court is inherent in the basic structure of the Constitution.
   (iv) Clause (1A) of Article 121 of the Federal Constitution recognises the power of the Syariah Courts when it exercises its power within jurisdiction.
   (v) Article 121 (1A) must be interpreted against the background of the foundational principles and other provisions in the constitution.
   (B) The basic structure of the Constitution will include Fundamental liberties (Article 5 to 13), 9th Schedule to the Constitution, MA 1963 Agreement etc. Even Parliament cannot pass laws to abrogate the Basic structure of the constitution which will be declared void by court. That is, the basic structure of the constitution which is secular cannot be abrogated or removed by a constitutional amendment. Thus, the creation of a theocratic Islamic State is not a constitutional reality.
    
6. The following support proposition that the framers of the Malaysian Constitution had envisaged secular laws for Malaysia, as the following show:
   (i) The Alliance Memorandum which was submitted jointly by UMNO, MCA, MIC to the Lord Reid Commission in 1956 had wanted Malaya to be a secular state: “The Religion of Malaya shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practising their own religion and shall not imply that the state is not a secular state”.
   (ii) Similarly, Lord Reid Commission report and the White Paper by the British Government in June, 1957 endorsed Malaya to be a secular state.
   (iii) The Cobbold Commission report 1692 again re-iterated the secular nature of Malaysia and that there was to be no state religion for Sabah & Sarawak.
   (iv) Article 3(4) of the Constitution provides “Nothing in this Article derogates from any other provision of this Constitution”. Effect of Article 3(4) is that the position of Islam cannot abrogate, extinguish, abridge or override the other provisions of the Constitution, that is Islam is subject to the Constitution.
   (v) The Constitution proclaims itself to be the Supreme Law of the Federation (Art. 4(1)).
   (vi) The Constitution guarantees rule of law and separation of Powers (Articles 39, 44 & 121).
   (vii) The Constitution recognises decisions of Parliament to be made by a Majority, which is basic feature of Democracy and not that of theocracies.
   (viii) The constitution does not recognise Islamic law as law under its definition of “Law” [Art. 160 (2)].
   (ix) Shariah Law for Malaya was not envisaged at the time of independence in 1957 and when Malaysia was formed in 1963. The word “Shariah law and “Shariah Court” was not found in Historical documents leading to independence. Sabah & Sarawak had no State Religion. The word “Shariah law” and “Shariah Court” was added to Schedule 9 for the first time by amendment in September, 1976 that is “Muslim Law” was renamed as “Shariah Law” and “Muslim Courts” as “Shariah Courts”.
   (x) The creation of key Muslim institutions such as Majlis Agama, Syariah Courts etc are pursuant to laws passed by secular institutions.
   (xi) Article 11(1) of the Federal Constitution guarantees Freedom of Religion to all persons.
   (xii) The Constitution does not provide for any Head of Religion of Islam for Malaysia.
   (xiii) All Cabinet Ministers, Members of Parliament and Judges take oath of office to “preserve, protect and defend” the constitution, as opposed to taking any religious oath.
   (xiv) Islamic law is confined to what is provided for in State List II (Schedule 9).
    
7. The MCCBCHST appeals to the Kelantan State Government to respect and accept the Federal Court’s decision in Nik Elin Zurina’s case to impugn 16 provisions in the Kelantan State Syariah Criminal Code Enactment 2019 and not to re-enact the same impugned provisions again. Any non-acceptance of the Federal Court decision will mean going against the Rule of Law, the Federal Constitution, the Federal Court decision and the Separation of Powers between the Federal and State as provided for in Federal List I and State List II, Schedule 9.
   The Attorney general who is the guardian of public interest, the Rule of Law and protector of the Constitution should advise the Kelantan Government against any move to re-enact the impugned provisions. Kelantan’s move to re-enact the impugned provisions would pose a serious threat to democracy and de-stabilises the country. Everyone must act in the best interest of the country, protecting, upholding and defending our Constitutional Democracy.