The Judicial Battle: How Nik Elin and Iki Putra alter the fate of Syariah Criminal Jurisdiction

Introduction

A number of controversial constitutional difficulties have arisen in recent instances revolving our Federal Constitution, such as the latest interpretation of Article 121 (1A) by the Federal Court in Nik Elin & Anor v Kerajaan Negeri Kelantan [2024] and Iki Putra bin Mubarak v Kerajaan Negeri Selangor [2021]. These decisions have sparked debates in Malaysia, particularly concerning the jurisdictional divide between the Civil and Syariah Courts in the context of Article 121(1A). Ergo, an exposition on the heritage foundation of the Constitution is crucial in addressing these developments.

The decisions of Nik Elin and Iki Putra 

The appellants in Nik Elin contested 20 provisions of the Kelantan Syariah Criminal Code (I) Enactment 2019 as bieng unconstitutional and beyond the purview of the Kelantan State Legislative Assembly, claiming the Assembly had encroached on federal jurisdiction, as outlined in Article 4(1) of the Federal Constitution. The State Legislative Assembly argued that there were exceptions to matters pertaining to the Federal List, despite the Kelantan State Legislative Assembly having powers to enforce punishments on offences against the precepts of Islam. The Federal Court ruled in favour of Nik Elin, granting the petitioner's locus standi and invalidating the impugned sections, excluding ss. 13 and 30 of the 2019 Enactment.

In the case of Iki Putra, Iki Putra Mubarak was charged under Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 (“the Enactment”) for unnatural sexual intercourse with other males. The petitioner questioned the Selangor State Legislature's authority to enact such a law, based on Articles 4(3), 4(4), and 128 (1)(a) of the Federal Constitution. The Federal Court ruled s. 28 of the Enactment invalid and unconstitutional due to the Selangor State Legislature's ultra vires action in enacting the legislation. The Court also highlighted Article 75, which grants federal law precedence over state law in cases of conflict or contradiction. It mentioned the crimes of unnatural sex are already highlighted in sections 377 and 377A of the Penal Code.

Impact of the amendment to Article 121(1A) 

In 1988, the Federal Constitution (Amendment) Act amended the Federal Constitution to include Clause (1A) to Article 121, which now emphasises that civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.” This means that powers of the civil courts are relinquished when matters fall within the ambit of the Syariah Courts. 

The case of Mohamed Habibullah bin Mahmood [1992] has elucidated this jurisdictional divide, with the court holding that Article 121(1A) revoked the powers of the High Court to address Islamic disputes, particularly the case here involving married Muslim couples where the wife suffered abuse. Similarly, Lina Joy [2007] decided that apostasy falls under Syariah Courts’ jurisdiction, and therefore civil courts could not interfere with this matter. 

However, there were cases that portrayed deviations. In Indira Gandhi a/p Mutho [2018], it was disputed that Islamic law should be dealt with under the purview of Syariah Courts. Nevertheless, the Federal Court issued a unanimous decision in favour of Indira Gandhi, rendering a groundbreaking judgment that Article 121(1A) did not oust civil courts from deciding matters related to Islamic law when constitutional issues were involved, which in this case was the non-compliance of the Registrar of Muallaf when issuing a conversion certificate.

Article 121 (1A) could essentially be interpreted as an ouster clause. However, in the recent landmark case of Nik Elin it was the polar opposite. Professor Nik Ahmad Kamal Nik Mahmod commented that the Constitution should be amended to avoid conflicts between Syariah and civil laws, observing that this could have a “domino effect”. The question then becomes, “Have civil courts acted ultra vires by ruling on matters outside their jurisdiction?” 

Consequences on the Syariah Court criminal jurisdiction

Prior to Nik Elin and Iki Putra, the scope of the state legislative powers on Syariah criminal matters were merely ambiguously guided by the State List. The chaos in Nik Elin and Iki Putra cases magnified the consequences to the criminal jurisdiction of the Syariah Court. 

The most significant impact is the limitation of Syariah Court criminal jurisdiction. The essence of Iki Putra was that when a jurisdictional clash with the Federal law occurred, it would obstruct the Syariah Courts from hearing that particular criminal offence in conflict, albeit the offences are related to Islamic principles. Additionally, it has become increasingly challenging when implementing hudud and qisas laws, which cover crimes like theft, robbery and murder, as they overlap with provisions in the Penal Code. The same goes for Nik Elin’s case, where subject matter like sodomy and sexual harassment, abuse of halal label and connotation are no longer fall within the ambit of the Syariah Courts. 

Furthermore, the decisions of the cases could lead to the opening of floodgates for future disputes. Both cases are setting precedents for challenges to Syariah law, rendering jurisdiction of the Islamic courts in criminal law otiose. It could potentially trigger a chain reaction where similar laws enacted in other states could also be contested.

  Nonetheless, these judgements give a clearer guideline on the legislative powers between state Syariah laws and Federal laws. The judgments in both Iki Putra and Nik Elin explicitly drew the scope of Syariah Courts criminal authorities, which prevents the states from acting ultra vires and intruding into matters that are reserved for federal jurisdiction. Article 4 of the Federal Constitution states that any laws that are contrary to the Constitution shall be void. The precedent in Ah Thian v Government of Malaysia [1976] reinforced this principle, where Parliament and State Legislatures should strictly adhere to the Constitution and not simply enact laws they desire. 

The rulings serve to prevent double jeopardy and ensure legal equality. Constitutional law expert, Emeritus Professor Datuk Shad Saleem Faruqi, gave his comments on the case of Nik Elin where he emphasised that by clarifying the distinction on Syariah and Civil courts jurisdictions, Nik Elin upheld Article 8 of the Federal Constitution, which is equality before the law. The decisions ensure that Muslims and non-Muslims do not face unequal penalties for similar offences. The Syariah Judiciary Department also stated that this would promote harmonisation, allowing Syariah criminal offences to exist alongside the Penal Code while nullifying those contradicting the Constitution.

Consequences on the jurisdictional divide 

The first impact is the narrowing of the divide between the Civil and Syariah courts. Due to the preclusion clause under Item 1 of the State List, the Federal Court in both cases ruled certain state Syariah laws to be unconstitutional and void. The significance of Abdul Kahar bin Ahmad [2008], regarding precepts of Islam, was that Article 121 (1A) did not oust the Federal Court from matters that are within their purview, and they had the ultimate decision as to whether State Legislatures could enact those laws. This creates a vivid impression that Article 121 (1A) has been reverted to its original position. The courts in Iki Putra, were also of the view that the Federal Parliament possesses the “primary power of legislation” in criminal law matters, narrowing the gap even further with Syariah Courts having lesser control over Syariah law.

The second ramification is the emergence of lacuna in the law. The amendment of Article 121 (1A) was intended to prevent aggrieved parties from utilising the Civil High Court as a backdoor to influence the court rulings. However, the opposite occurred when the Federal Court, referring to Iki Putra, granted the declaration in Sis Forum (Malaysia) [2022], where the applicant contended that Section 66A of the Administration of Religion of Islam (State of Selangor) Enactment 2003 was void as the State Legislative had no power to make such laws. Both Iki Putra and Nik Elin cases are opening “floodgates” by employing principles of unconstitutionality and ultra vires. 

Reforms 

When there is a legal upheaval sparked by jurisdictional conflicts and inconsistencies, it is suggested that amendments to the Ninth Schedule via Article 159(3) of the Federal Constitution be taken into consideration, as it demarcates the legislative powers between the federal and state governments. Malaysia could also adopt a unitary jurisdiction where both Civil and Syariah Courts are combined. Such a system would comprise three judges, with at least two judges in the bench who are experts in the subject matter when a case concerns Syariah law. Their opinions would be binding to ensure fairness and this could be described as Malaysia’s own common law system. 

The third reform is that courts should adopt the harmonisation approach as a universal interpretation and apply it together with Article 121(1A) to demonstrate upholding of the Federal Constitution while at the same time acknowledging the Syariah Court’s authority. This approach could be seen in Sukma Darmawan Sasmitaat Madja [1999], where the court viewed mitigating the stringent rules by permitting offences to be tried in either Civil or Syariah courts, when jurisdictionally permitted to do so.

Conclusion 

In conclusion, both cases Nik Elin and Iki Putra have enlightened our attention to Article 121(1A) that concerns the separation of the two jurisdictions. However, it is crucial to appreciate these developments as they have significantly clarified the jurisdictional boundaries between the Syariah and Civil Courts. The continuing controversies surrounding the jurisdictional divide highlight the need for further reforms and harmonisation to ensure the protection of the rights of all Malaysians.