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What are the nullified and maintained provisions in Nik Elin v Kelantan case? | Scoop
The Federal Court today has ruled in favour of lawyer Nik Elin Zurina Nik Abdul Rashid (centre, right) and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman (centre, left) on 16 provisions in the Kelantan Shariah Criminal Code (I) Enactment 2019 out of 18, and maintained two to be under the state assembly’s power, which are Section 13 and 30. – Abdul Razak Latif/Scoop pic, February 9, 2024
News

What are the nullified and maintained provisions in Nik Elin v Kelantan case?

Apex court rules to strike out 16 sections and decided state assembly only had power over two, but what do these sections entail?

Scoop Reporters
Updated
1:17 PM MYT

 

KUALA LUMPUR – The Federal Court today struck out 16 provisions in the Kelantan Shariah Criminal Code (I) Enactment 2019 in favour of Kelantan lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter, Tengku Yasmin Natasha Tengku Abdul Rahman.

In an 8-1 split majority decision, a nine-person bench chaired by Chief Justice Tengku Maimun Tuan Mat ruled that the state assembly had no power to enact the 16 provisions, as the offences in question fell within the purview of federal law.

The following are the 16 provisions in which the Federal Court ruled as null and void:

– Section 11: Destroying or defiling place of worship
– Section 14: Sodomy
– Section 16: Sexual intercourse with a corpse
– Section 17: Sexual intercourse with non-human
– Section 31: Sexual harassment
– Section 34: Possessing false document, giving false evidence, information or statement
– Section 36: Anything intoxicating
– Section 39: Reducing scale, measurement and weight
– Section 40: Executing transactions contrary to “hukum syarak” (shariah 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: Preparatory act of vice
– Section 47: Act of incest
– Section 48: Muncikari (acting as a procurer between a female and male for the purpose of prostitution)

Meanwhile, the two sections maintained by the Federal Court are:   

– Section 13: Selling or giving away a child to a non-Muslim or morally reprehensible Muslim
– Section 30: Words capable of breaking peace

In 2022, the mother and daughter filed a constitutional challenge against 20 provisions within the Kelantan Syariah Criminal Code (I) Enactment 2019.  

The duo then retracted two provisions last year, namely Section 5 (false claim) and Section 37 (gambling), which the chief justice said are considered legal.  

The 18 provisions they challenged are under the Kelantan Shariah Criminal Code (1) Enactment 2019, which lists more than 50 offences and was gazetted in December 2020. – February 9, 2024

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