Sisters in Islam (SIS), Legal Dignity, and Justice for Sisters (JFS) today launched a report on the Kelantan Syariah Criminal Offences Enactment which analyses the Kelantan Syariah Criminal Code (I) Enactment 2019 (2019 Enactment of the Enactment) which came into force on 1 November 2021.
The report highlights the amendments of the Enactment, which now has a total of 68 sections; 33 new sections were added from the 1985 Enactment which previously had 35 sections. The enactment also states that the maximum punishment under the syariah court jurisdiction is a fine of RM5,000, 3 years of imprisonment and 6 lashes of the cane.
This enactment is problematic, redundant, unnecessary and a waste of resources as it introduces 31 new areas of criminality, most of which fall outside of state jurisdiction and infringe on the rights guaranteed under the Federal Constitution. Among the sections that are covered by the new enactment are exposing aurat in public places (Section 23), change of gender (Section 19), anything intoxicating (Section 36), which overlaps with the Dangerous Drugs Act, disobedience to parents (Section 33) and others. It also expands the power of the Syariah Court by empowering the courts to replace or add other “alternative” punishments such as community service and/or rehabilitation which goes beyond what is permitted under Act 355.
With the 2019 Enactment coming into force, the Kelantan Islamic Department and Syariah Courts are empowered to implement the Enactment by taking actions on the wide-ranging areas that the enactment penalises as it allows for unreasonable state regulation and intervention in all aspects of a person’s life – from their identity, body, belief, thoughts, behaviour to the relationships that they nurture hence, affecting various groups such as women, children and youth, LGBTQI individuals, human rights defenders and others.
This report analyses the 2019 Enactment through human rights and constitutional frameworks and explains why the enactment overlaps with the Federal Constitution and other existing Federal Laws such as Penal Code, Criminal Procedure Code (CPC), Dangerous Drug Act and others. Among of the findings from the report include:
- Provisions under the 2019 Enactment overlap with existing laws at the Federal Level and items in the Federal List, infringing the Federal Constitution, the supreme law of the land. The Federal Constitution has divided the areas of law that could be legislated by the Federal Government and the State Government. There are provisions under the 2019 Enactment that clearly intrude on existing Federal laws, such as the Penal Code, Dangerous Drugs Act, and various Acts related to commercial and banking matters.
- The fundamental liberties guaranteed by the Federal Constitution and international human rights law are challenged by the 2019 Enactment. In particular, it will continue to infringe the right to freedom of religion and belief, the right to life, which includes the right to privacy, the right to live with dignity, the right to livelihood, the right to be free from torture; the right to freedom of speech, and association as a result of unnecessary state intervention into all aspects of a Muslim person’s life, and by extension all persons regardless of religious background.
- Further, new sections under the 2019 Enactment criminalises the attempt of consensual sexual relations between persons of all genders, as well as transgender and gender diverse persons based on their gender identity. This contravenes the very basis of equality and non-discrimination principles under international human rights law.
- The 2019 Enactment also maintains the corporal punishment of caning, and further increased areas for whipping as a permissible punishment. This is in contravention of international human rights law.
The Kelantan Syariah Criminal Code (I) Enactment 2019 is an infringement of human rights and causes more damage than good as any proposed law with harsher punishments will encourage violence, potential abuse of power and discrimination towards marginalised communities.
 Jantina or sex characteristics and gender are used interchangeably, although they are two different yet interrelated aspects of human beings)