Who has the power to legislate on these 20 Shariah offences?

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The Federal Court Will Decide Whether Kelantan or the Federal Government Has Legislative Power Over 20 Shariah Offences

Two Malaysian Muslims have been granted permission by the Federal Court to challenge the validity of 20 Shariah offences under Kelantan's Syariah Criminal Code (I) Enactment 2019. The core of the constitutional challenge centres on whether the Kelantan state legislative assembly possessed the authority to enact these provisions, or if such legislative power resides with the federal government as defined by the Federal Constitution. The court's ultimate decision will clarify the division of legislative powers in this specific context.
Legal Challenge Filed Against Kelantan State Law

The constitutional challenge was initiated by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman, who are seeking a Federal Court declaration that 20 provisions within the Kelantan Syariah Criminal Code (I) Enactment 2019 are invalid. Their argument posits that the Kelantan state legislature exceeded its jurisdiction by legislating on these matters, contending that these offences fall under the purview of federal law. The challenged provisions encompass a range of offences, including those related to false claims, destruction of places of worship, selling or giving away a child, sodomy, sexual intercourse with a corpse or non-human, sexual harassment, possessing false documents, intoxicating substances, gambling, and incest.
Division of Powers Under the Federal Constitution

The legal basis for the challenge rests on the Federal Constitution's Ninth Schedule, which delineates legislative powers between the federal Parliament and state legislative assemblies. While Item 1 of the State List grants state legislatures the power to create and punish offences committed by Muslims against Islamic precepts, this is subject to exceptions where such matters are already covered by the Federal List. Conversely, Item 4 of the Federal List designates "criminal law" as a federal power, which is argued to encompass broad public concerns such as peace, order, security, and morality. The challengers assert that all 20 of the disputed Kelantan provisions are already addressed by existing federal legislation, such as the Penal Code, anti-human trafficking laws, and gambling-related statutes, thereby indicating an overreach by the state legislature.
Kelantan Government's Opposition and Court's Decision

The Kelantan government initially resisted the challenge, arguing that the two women lacked legal standing to file the case and that the state law was valid as it applied to Muslims within Kelantan, who are subject to both federal and state legislation. However, the Federal Court, after hearing arguments, granted leave for the constitutional challenge to proceed. This decision signifies that a panel of Federal Court judges will now hear the substantive case to determine whether the Kelantan state government had the constitutional authority to enact the contested Shariah offences. The case is scheduled for case management at the Federal Court on November 14.

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Who has the power to legislate on these 20 Shariah offences?

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