PUTRAJAYA: The Federal Court is not attempting to undermine Islam or the Syariah Court while hearing the case of the constitutional challenge to the Kelantan Syariah Law.
Chief Justice Tun Tengku Maimun Tuan Mat said the issue in the legal dispute concerns the competency of the enactment in the Kelantan Syariah law.
She urged people, especially those directly involved in the case, to refrain from disseminating distorted information about the issue to prevent misconceptions among the public.
"So much has been said by so many people on the petition which a lot of it is the distorted version of what the real issue is before us.
"The issue in this petition is not about undermining the position of Islam or the Syariah Courts in the country.
"The issue arising out of the petition is simply about the competency of the Kelantan State Legislative Assembly to enact the impugned provisions," she said at the outset of today's proceeding.
The top judge made this statement after one of the lawyers involved in the proceedings publicly made controversial remarks regarding the matter.
Tengku Mainum said the statement made by lawyer Yusfarizal Yusoff who appeared for the Terengganu Islamic Religious and Malay Customs Council, was extremely uncalled for.
On Sept 6, Pas's mouthpiece Harakahdaily quoted Yusfarizal as saying that the case was the final point before a 'gravestone' is placed upon the Syariah Court in this country.
Tengku Maimun also reminded all parties to uphold the rule of law and avoid injecting political sentiment in the case.
"We would like to remind lawyers that you are bound by the ethics of your profession, and you know very well that it is not appropriate to discuss pending cases at a public forum, more so when you fail to disclose the full facts of the case.
"The statement that 'Mahkamah Syariah akan berkubur di Malaysia' (The Syariah Court will be buried in Malaysia), is untrue.
"Counsel failed to disclose the fact that the petitioner had conceded that two provisions out of the 20 impugned provisions are in fact within the purview of the Kelantan State Legislative Assembly to enact and thus under the Syariah Court to administer," she added.
In today's proceedings, Tengku Maimun who led the nine-member bench heard submissions from the remaining parties in the case including Malaysian Bar, Sisters in Islam, and the Perak and Terengganu state Islamic councils.
The court has reserved its judgement and will set a later date to deliver its verdict.
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.
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 18 impugned provisions are:
- Section 11: Destroying or defiling a place of worship
- Section 13: Selling or giving away a child to non-Muslim or morally reprehensible Muslim
- Section 14: Sodomy
- Section 16: Sexual intercourse with a corpse
- Section 17: Sexual intercourse with a non-human
- Section 30: Words capable of breaking peace
- 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 via 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: Preparator act of vice
- Section 47: Act of incest
- Section 48: Muncikari (person who acts as a procurer between a female and a male for the purpose which is contrary to hukum syarak).
The duo contended that the power to legislate on criminal matters belongs exclusively to Parliament, with state assemblies only given the right to enact laws concerning the Islamic faith.
Article 4(4) enables the court to assess the validity of laws enacted by Parliament or a state legislature if it is believed that these bodies exceeded their legislative authority. The direct appeal to the Federal Court was chosen due to its exclusive jurisdiction granted by Article 128(1)(a) of the Federal Constitution for such matters.
In the case of constitutional challenges pursued through the Article 4(4) channel, permission or leave from a Federal Court judge is required to initiate the process.