No. 4 Lorong 11/8E, 46200 Petaling Jaya, Selangor Darul Ehsan, Malaysia.​

Vilified for Challenging Kelantan’s Shariah Law Enactments – Nik Elin’s Legal Odyssey.

By Ameena Siddiqi

Iki Putra ‘memaku keranda’, Nik Elin letak ‘batu nisan’ Kita perlu faham latar belakang beberapa kes yang ingin mencabar Mahkamah Syariah sebelum ini sudah berlaku. (Tetapi bagi saya), kes Nik Elin ini adalah penghujungnya, sebelum satu ‘batu nisan’ diletakkan (bagi menguburkan) Mahkamah Syariah di Malaysia,” tegas Yusfarizal. 

“Iki Putra case ‘nails the coffin’, Nik Elin case places the ‘tombstone’. We need to understand the background of several cases that want to challenge the Syariah Court before they have already happened. (But for me), this Nik Elin case is the end, before a ‘tombstone’ is placed (to bury) the Syariah Court in Malaysia,” stressed lawyer Yusfarizal Yusoff who is representing Majlis Agama Islam dan Adat Melayu Terengganu (Maidam) in the case.

These are the kind of mis information, relentless attacks, death threats, fearmongering, and widespread vilification online and offline, Kelantan-born lawyer Nik Elin Zurina has been fearlessly facing for challenging the constitutionality and validity of Kelantan state’s Shariah law enactments implemented in 2019. This is a familiar battle for her, as she stoically withstands societal backlash for exercising her right as a rational citizen to question the lawmakers of her home state.

In a society where legal complexities intersect with public sentiment, the public scrutiny directed at this female lawyer for daring to challenge contentious laws within her state is nothing short of a spectacle. Her courage in confronting these issues, often overlooked by many, exemplifies her determination to pave the way for a future beyond the present legal quagmire.

Lawyer Nik Elin Zurina Nik Abdul Rashid is primarily challenging the competency of the Kelantan state government in enacting Shariah laws. She contends that the state government lacks jurisdiction to enact offenses falling under federal jurisdiction. Clarifying her stance to Malaysiakini on November 16, 2023, she stated, “They (PN—the opposition party and coalition member to the Kelantan government PAS) said I am challenging God, challenging Shariah law. What I am challenging is ‘takzir’ in the enactment.”

She emphasizes that her challenge revolves around the Kelantan state assembly enacting laws without competency, divorced from the realm of Islamic doctrine. 

This legal skirmish, however, lacks finesse. Suddenly, everyone seems to be an authority on Shariah law and the federal constitution, with opinions pouring in from all corners of society, ranging from ordinary citizens to the highest echelons of power. Perikatan Nasional (PN) a powerful political party, in control of four states, has resorted to making threats, holding vigils, and congregating in front of the court as a show of force to indirectly intimidate and not to mention misguiding the public with mis information creating fear. 

Within this clamour, lost in this fervour is the acknowledgment that these legislations were enacted without due regard for the supreme law of the land, perpetuating a dual system where Muslims perhaps face harsher penalties compared to their non-Muslim counterparts.

These punitive laws risk fracturing society, associating religious adherence with fear and portraying faith primarily through a punitive lens. 

The thoughts that occupy the minds of some leaders remain a puzzle. Their propagation of fallacies, suggesting that a loss in this case jeopardizes the entire national Shariah legal system, overlooks the decentralized nature of Shariah law, vested in individual states and their rulers.

Returning to the steadfast resolve of one woman to stand resolute, head held high, and meet their gaze. “I dared,” she asserts, “because I believe in justice and equity. I uphold our federal constitution, the bedrock of our nation. As a proud Kelantanese and Malaysian, it is my right to contest laws implemented in my hometown and bring this issue to the national forefront. Respect for the law should extend to all.”

Even if the battle ends unfavourably, Nik Elin’s efforts have compelled the State government of Kelantan to at least relook at how they are making their laws. They stand as orators lost in rhetoric, failing to grasp the essence of their own teachings.

In mid-November 2023, Nik Elin emphasized that her challenge was not an attack on Islam, but about the correct federal or state jurisdiction to legislate offenses. She argued that the state does not have the legal power to arrest, investigate, and try an offense provisioned under the Federal List and assigned to Parliament and the civil authorities.

This case holds more significance than other similar challenges on the constitutionality of Shariah state enactments brought to court previously. The provisions challenged in Nik Elin’s case are broader, covering 20 provisions (now reduced to 18), compared to previous cases on a particular provision. The apex court’s decision would clarify the separation of powers between the federal and state governments regarding Islamic offenses.

The chief justice highlighted on the November 20, 2023, hearing that a claim that ‘the Shariah court will be buried in Malaysia’ is not true. The only issue is about the competence of the Kelantan state assembly to enact the shariah criminal code. She said the court had taken the unusual step of making its observation because so much had been said by many people about the petition, and most of what was said was a distorted version of the real issue before the court.

“As we have stated from the beginning of the hearing on Aug 17, the issue is not about bringing down the position of Islam or the shariah court in this country. The issue that arises from the petition is only about the competence of the Kelantan state legislative assembly to enact the contested provisions,” she said.

In a climate where questioning established norms can be fraught with challenges, Nik Elin embarked on a courageous legal crusade challenging the questionable laws in her native state. This Kelantanese, fully cognizant of the backlash, consequences, and potential peril that awaited her, chose to confront regressive legal enactments that seemingly disregard the supreme authority of the federal constitution, online backlash, and security concerns notwithstanding.

Nik Elin’s journey has cast a spotlight on the intersection of Shariah law and the federal constitution, prompting diverse perspectives from individuals ranging from ordinary citizens to the highest echelons of government. 

Some proffer authoritative views, while others echo sentiments without a comprehensive understanding of the intricate legal landscape. Crucially, the laws in question establish a dual system that disproportionately impacts Muslims and women, inviting scrutiny on their compatibility with the overarching principles of justice and fairness.

The purported divine underpinning of these enactments, as advocated by the Kelantan state government, raises fundamental questions about the role of interpretation and belief in shaping punitive measures within society. While ostensibly rooted in a desire for societal discipline, the efficacy of these laws in fostering a truly just and fair society, akin to the ideals of the Prophet’s time, is a subject ripe for rigorous examination.

The enactment goes against Malaysia’s commitment as a state party to the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw).

It is noted that in 2018, the Cedaw committee on Malaysia expressed concern about how the Shariah legal system has led to a gap in protecting women against discrimination.

It also took note that Malaysia falls short on the global Sustainable Development Goals, failing to commit on key targets such as ending discrimination against women and girls, ending violence and exploitation of women and girls, eliminating forced marriages, universal access to reproductive rights and health, and the adoption of policies for gender equality.

The state government’s defence of these laws as the “law of Allah” underscores a pressing inquiry: do they assume the mantle of divine authority? Nik Elin’s challenge, grounded in her assertion of the constitutional right to question laws in her hometown, strikes at the heart of this issue.

Critics may balk at characterizing these enactments as regressive or barbaric, yet Nik Eilin stands unwavering, exemplifying the courage required to scrutinize legal frameworks in pursuit of justice. Amidst misleading narratives propagated by leaders suggesting that challenging these laws jeopardizes the entire Shariah system, Nik Elin’s legal battle exposes the fallacy in this simplistic argument.

The complex legal landscape of Malaysia, with its decentralized Shariah system vested in individual states, adds nuance to the narrative surrounding Nik Elin’s case. It underscores the need for understanding of the legal intricacies at play.Chronologically, Nik Elin’s case unfolds as a testament to her commitment to justice. From the initial filing to the subsequent legal proceedings, each step in her legal crusade underscores the importance of 

upholding the principles enshrined in the federal constitution. As her case navigates the judicial system, it illuminates the challenges and triumphs inherent in confronting entrenched legal frameworks.

To Nik Elin, we extend our support and admiration for your resolute stance. Even if victory remains elusive, your unwavering commitment has at the very least, brought those responsible before the Palace of Justice. In challenging the incongruity between actions and holier-than-thou attitudes, you embody the spirit of justice, demanding respect for the law in the pursuit of a fair and equitable society. In a society often lost in rhetorical preaching without genuine understanding, your legal crusade serves as a beacon of hope for the principles enshrined in the federal constitution.

Chronology Nik Elin Case:

May 2022: Lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman filed a constitutional challenge directly at the Federal Court via Article 4 (4) of the Federal Constitution. The challenge was against the PAS-led Kelantan government’s competency to enact Shariah criminal laws.

August 2023: A panel of nine Federal Court judges heard a constitutional review of 20 provisions in the Kelantan Syariah Criminal Code (I) Enactment 2019 as part of the proceedings for Nik Elin’s case. The panel’s chair stated during the hearing that there was no dispute arising over Islam as the official religion of the federation.

The Kelantan Syariah Criminal Code (I) Enactment 2019 (2019 Enactment or the Enactment) was passed by the Kelantan State Legislative Assembly in 2019 and came into force on the 1st of November 2021. It replaces the old 1985 Enactment and supersedes the Kelantan Syariah Criminal Code (II) Enactment (1993) 2015 on hudud laws, which were not enforceable as they contravened the Federal Constitution.

The 2019 Enactment expanded acts considered criminal under syariah law, adding 33 new sections to the existing 35, totalling 68 sections. It also modified existing sections, making punishments more severe and empowering the Syariah Court to replace or add ‘alternative’ punishments such as community service and/or rehabilitation.

Arguably, the ‘alternative’ punishments under the 2019 Enactment go beyond the maximum punishment permitted under Act 355 – maximum fine of RM5000, 3 years imprisonment, and 6 lashes of the cane. This is a clear usurpation of syariah court jurisdiction to the civil court’s jurisdiction as enshrined in Article 121(1)(a)1 of the Federal Constitution.

With the 2019 Enactment coming into force, the Kelantan Islamic Department and courts are empowered to implement the Enactment by taking actions on the wide-ranging areas that the enactment penalizes. The enactment reinforces a narrow brand of Islam on its citizens, impacting all persons in the state of Kelantan, as highlighted in the Sisters in Islam Kelantan Enactment Report 2022.