Authored By: Chloe Chin Tian Wei
Multimedia University, Melaka.
Case NAme
Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan, 2024 2 MLJ 150
Federal Court (Putrajaya), (9-Judge Bench), decided 9 February 2024
Introduction
Under Item 1 of the State List, State Legislatures can enact laws to punish offences of individuals who profess the religion of Islam. On the other hand, Item 4 of the Federal List governs criminal law in general. Unfortunately, the division of legislative authority has caused controversial conflicts. On 25th May 2022, Nik Elin and her daughter, Tengku Yasmin Natasha binti Tengku Abdul Rahman, had filed petitions to challenge State law. In early 2024, a landmark judgement was delivered by the Federal Court of Malaysia, on a majority ruling of 8 to 1. In this regard, the judgment has not only clarified the limits of State legislative power over Islamic criminal offences but also has expanded the doctrine of locus standi in constitutional litigation.
Facts of the Case
Kelantan Syariah Criminal Code (I) Enactment 2019 (Enactment) created various Syariah criminal offences where it applies only to Muslims in the State of Kelantan. The petitioners were Nik Elin Zurina Nik Abdul Rashid and her daughter. They were Muslim individuals with connections to Kelantan. Although the first petitioner later moved to Kuala Lumpur, she continued to travel to Kelantan because she had family, properties and assets there. The second petitioner also had a residential address in Kelantan and frequently travelled there to visit family. The petitioners filed a petition directly in the Federal Court under its exclusive original jurisdiction. They sought a declaration that 18 provisions of the Enactment were void. The respondent, namely the Government of the State of Kelantan, opposed the petition.
Legal Issue(s)
In the Federal Court, issues to be determined were as follows: (a) Whether the petitioners had locus standi to bring the constitutional challenge; (b) Whether the Government of the State of Kelantan was a proper respondent in the petition; (c) Whether expert evidence could be used to interpret the Federal Constitution (FC); (d) Whether the Kelantan State Legislature had constitutional power to enact the impugned provisions of the Enactment.
Arguments Presented
Respondent’s Arguments
The respondent contended that the petitioners lacked locus standi because the petition was academic and abstract and the petitioners were mere busybodies, were not adversely affected by the impugned provisions, and that no real controversy existed between them and the State of Kelantan.
The respondent defended the validity of the impugned provisions. It argued that the provisions concerned offences against the precepts of Islam and were therefore within the State Legislature’s power under Item 1 of the State List.
Petitioner’s Arguments
In reply, the petitioners maintained that they resided or intended to reside in Kelantan, owned property there, and had genuine connections with the State. As the Enactment was a law capable of being enforced against them, they argued that this was sufficient to confer standing to challenge its constitutional validity.
Furthermore, their argument was that the Kelantan State Legislature had no constitutional power to enact those provisions because the matters fell within the Federal List which is within Parliament’s power.
Court’s Reasoning and Analysis
Locus Standi
The court referred to its most recent decision on the issue, namely Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors (Taman Rimba),[1] in which it endorsed the minority judgment in Government of Malaysia v Lim Kit Siang.[2] That approach emphasised that locus standi in public law should be relaxed as far as possible, so as to allow public-spirited persons with some interest in the matter to bring proceedings.
Furthermore, the court was careful to distinguish Taman Rimba from the present case. Taman Rimba involved an administrative judicial review. In contrast, the present case concerned constitutional judicial review, in which the Federal Court was required to determine the constitutionality of legislative provisions. Given this distinction, the court held that the principles governing locus standi in constitutional challenges must be even broader. The court observed that in constitutional judicial review, where the focus is on the validity of the law itself and the competence of the legislature to enact it, an even wider approach is justified.
The court identified Article 4(1) of the FC, which provides the Constitution to be the supreme law of the Federation and any law inconsistent with it shall be void, as the basis for this broader approach. The court rejected the respondent’s argument that constitutional review should be deferred until a directly affected litigant appeared before the court. Instead, the court emphasised that the triggering fact under Article 4(1) is the existence of a law that has been passed after Merdeka Day. Once enacted, the law exists as a factual reality and is therefore capable of being challenged. In support of this reasoning, the court referred to the decision in Public Prosecutor v Dato’ Yap Peng,[3] and held that mere existence of a legislative power or provision is sufficient to warrant constitutional scrutiny, without the need for proof that the power has been exercised to the detriment of a particular individual. Referring to Wong Shee Kai v Government of Malaysia,[4] the court noted that incompetency challenges are a specific form of inconsistency challenge governed not only by Article 4(1) but also Articles 4(3) and 4(4). Neither Article 4(3) nor Article 4(4) requires a challenger to justify personal reasons for bringing the challenge. Accordingly, the court held that all citizens, in appropriate cases, are entitled to approach the Federal Court to challenge the legislative competence of Parliament or a State Legislature under Articles 4(4) and 128.
State Legislative Power
Criminal law was treated as an exclusively federal matter. The Federal Court reaffirmed a fundamental principle of Malaysia’s constitutional framework, which is the power to make laws on criminal law belongs only to the Federal Parliament. This is expressly provided under the Federal List (List I) in the Ninth Schedule of the FC. While State Legislatures do have law-making powers under the State List (List II), those powers are limited and carefully defined. In particular, states may legislate on Islamic matters only to the extent that such laws concern offences against the precepts of Islam and do not intrude into areas already reserved for federal law.
In this context, the court further provides that the misapprehension is the belief that the States can enact any law so long as that law deals with the precepts of Islam. The court explains that the constitutional method refutes this. Malaysia’s legal system leans more towards secularity without being purely secular. In this context, general criminal law must be developed so that it can be applied equally to all persons. This power is conferred on Parliament by virtue of item 4 of the Federal List. By contrast, item 1 of the State List provides for Islamic law, including creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except matters included in the Federal List.
A crucial part of the Court’s reasoning was its reliance on the pith and substance test. This test looks beyond the form or label of a law and examines its true character and substance. The Court asked whether the impugned provisions were genuinely religious offences, or whether they were, in substance, general criminal law. Where the substance of the law concerned conduct already criminalised under federal legislation, the Court ruled that it fell squarely within federal jurisdiction. Thus, this made clear that religious framing cannot be used to bypass constitutional limits.
Judgment and Ratio Decidendi
The majority of the court held that the petitioners did possess locus standi. Also, the petition was allowed in part. The Federal Court declared that 16 provisions of the Enactment were invalid, null and void. Kelantan State Legislature had no power to make those provisions. A State Legislature may create and punish offences against the precepts of Islam only if the offence falls within Item 1 of the State List.
Critical Analysis
Subsequent Judicial Decision Regarding Locus Standi
In Attorney General of Malaysia v Sabah Law Society,[5] the Federal Court referred to the case of Nik Elin and held that the Sabah Law Society (SLS) had threshold locus standi in a constitutional judicial review in respect of the Special Grant provided for Sabah under Article 112C and S 2 of Part IV of the Tenth Schedule of the FC.[6] In determining whether SLS satisfied the threshold requirement, the court affirmed that a broad and liberal approach to locus standi ought to be adopted, particularly in cases involving public interest litigation. Relying on the reasoning of the Chief Justice in Nik Elin, the court observed that Article 4(1) of the FC forms the substantive constitutional basis for all constitutional judicial review cases. The court highlighted that the fact that legislation has been passed creates a factual circumstance in which its constitutional validity may be challenged, and the Constitution does not require that such challenges await the appearance of a particular or “correct” litigant. This indicates that the decision in Nik Elin has a legal impact on strengthening access to constitutional review. As stated by President of the Sabah Law Society, the ability of individuals and organisations to bring constitutional challenges before the courts represents a fundamental hallmark of a democratic system. Members of the public should not be discouraged from seeking judicial recourse.[7]
Implication of Nik Elin on Federalism: Reaffirmation of Constitutional Boundaries
Malaysia’s federal structure is similar to a dual federalism, reflecting a clear division of power between the federal government and state governments.[8] This reinforces the superiority of the FC by establishing clear boundaries and defining the respective jurisdictions of federal and state laws.[9] This framework ensures that each level of government respects the powers allowed to the other.
Subsequent to Nik Elin decision, the Kelantan Deputy Menteri Besar announced that amendments to the enactment would be tabled in July 2025. He explained that a framework had been outlined to ensure that any amendments would comply with the constitutional framework and the laws applicable in Malaysia. According to him, a convention had previously been held to gather input for reviewing the annulled enactments and devising suitable amendments.[10] This shows that Kelantan state government accepted the binding force of the constitutional ruling and chose to adjust its Sharia criminal legislation, accordingly, demonstrating how constitutional supremacy and judicial review in regulating the state’s legislative authority.
However, recent statements by the Kelantan police regarding the prosecution of underage sexual offences have given rise to constitutional concerns relating to criminal jurisdiction in Malaysia. It was reported that the police moved to refer cases involving consensual sexual relations with underage girls to Syariah courts has drawn criticism.[11] Based on this issue, the ongoing tension between state and parliament regarding the enactment of criminal law can still be observed.
Conclusion
The case of Nik Elin is an important constitutional decision on federalism and legislative competence in Malaysia. The Federal Court held that the State Legislature’s power to create Syariah offences is not unlimited. Constitutional validity depends on the true substance of the law, not merely its label. The lasting impact of the case is that it reinforces the supremacy of the Constitution, in which it gives a clearer guidance on the boundary between State Syariah law and federal criminal law.
Reference(S):
Legislation
Federal Constitution (Malaysia).
Kelantan Syariah Criminal Code (I) Enactment 2019.
Penal Code (Malaysia).
Case Laws
Attorney General of Malaysia v Sabah Law Society [2024] 6 MLJ 121.
Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors [2023] 5 CLJ 167.
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12.
Nik Elin Zurina binti Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [2024] 2 MLJ 140.
Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311.
Wong Shee Kai v Government of Malaysia [2022] 6 MLRA.
Secondary Sources
Bernama, ‘Nik Elin Case: Federal Court Strikes down Kelantan Syariah Enactment Provisions’ <https://www.bernama.com/en/news.php?id=2503756> accessed 1 July 2026
Cheah CM, ‘Comparison of the Development of Public Interest Litigation in the United Kingdom, India and Malaysia: Past, Present and Future’ (2019) <https://static1.squarespace.com/static/63ef0fbd760862458df92e6d/t/64dee95c0356d440859c4db6/169%202330353905/Final_UMLR+Vol+3+2019_23.7.19.pdf> accessed 1 July 2026
Free Malaysia Today, ‘Https://Www.freemalaysiatoday.com/Category/Nation/2025/12/21/Underage-Sex-Cases-And- Shariah-Courts-Lawyers-See-Constitutional-Question/ ’ (2025) <Underage sex cases and shariah courts: lawyers see constitutional question> accessed 1 July 2026
Malay Mail, ‘Muslim Men in Terengganu May Still Be Charged with Enticement of Married Women, Says State Chief Syarie Judge’ (2023) <https://www.malaymail.com/news/malaysia/2023/12/21/muslim-men-in-terengganu-may-%20still-be-charged-with-enticement-of-married-women-says-state-chief-sharie-judge/108670> accessed 1 July 2026
Md Khalid R and Jalil F, ‘Theories of Federal-State Relationship’ (2018) <https://journalarticle.ukm.my/13025> accessed 1 July 2026
Muslim N and others, ‘MALAYSIAN FEDERALISM – ISSUES and ACCEPTANCE’ (ResearchGateApril 2015) <https://www.researchgate.net/publication/282641095_MALAYSIAN_FEDERALISM_-_ISSUES_AND_ACCEPTANCE> accessed 1 July 2026
New Straits Times, ‘Anyone Can Challenge Constitutionality of Laws Enacted in Malaysia’ (2022) <https://www.nst.com.my/news/nation/2022/01/764907/anyone-can-challenge-%20constitutionality-laws-enacted-malaysia> accessed 1 July 2026
——, ‘Kelantan to Table Syariah Enactment Amendments in July’ (2025) <https://www.nst.com.my/news/crime-courts/2025/01/1159950/kelantan-table-syariah-%20enactment-amendments-july%C2%A0> accessed 1 July 2026
Onyeabor E, ‘Onyeabor- Expanding the Scope of Locus Standi in Environmental Litigation’ (2010) <https://www.researchgate.net/publication/304748362_Onyeabor-_Expanding_the_Scope_of_Locus_Standi_in_Environmental_Litigation> accessed 1 July 2026
Thomas Philip Advocates & Solicitors, ‘Judicial Review: Are You “Adversely AIected” by the Public Authorities’ Decision?’’ <https://www.thomasphilip.com.my/articles/judicial-review-are-you-%20ladversely-aIectedr-by-the-public-authoritiesr-decision> accessed 1 July 2026
Wu J, ‘5 Things about Constitutional Judicial Review’ <https://joshuawu.my/5-things-about-%20constitutional-judicial-review> accessed 1 July 2026
[1] [2023] 5 CLJ 167.
[2] [1988] 2 MLJ 12.
[3] [1987] 2 MLJ 311.
[4] [2022] 6 MLRA.
[5] [2024] 6 MLJ 121.
[6] Joshua Wu, ‘5 Things About Constitutional Judicial Review’ https://joshuawu.my/5-things-about-constitutional- judicial-review/ accessed 1 July 2026.
[7] ‘Anyone can challenge constitutionality of laws enacted in Malaysia’ New Straits Times (21 January 2022) https://www.nst.com.my/news/nation/2022/01/764907/anyone-can-challenge-constitutionality-laws-enacted- malaysia accessed 1 July 2026.
[8] Rasyikah Md Khalid and Faridah Jalil, ‘Theories of Federal-State Relationship’ (2018) Jurnal Undang- Undang dan Masyarakat SI 115–127 https://journalarticle.ukm.my/13025/ accessed 1 July 2026.
[9] Nazri Muslim and others, ‘MALAYSIAN FEDERALISM – ISSUES and ACCEPTANCE’ (ResearchGateApril 2015) <https://www.researchgate.net/publication/282641095_MALAYSIAN_FEDERALISM_-_ISSUES_AND_ACCEPTANCE> accessed 1 July 2026.
[10] 10 ‘Kelantan to table Syariah enactment amendments in July’ New Straits Times (January 2025) https://www.nst.com.my/news/crime-courts/2025/01/1159950/kelantan-table-syariah-enactment-amendments- july%C2%A0 accessed 1 July 2026.
[11] ‘Underage sex cases and shariah courts: lawyers see constitutional question’ Free Malaysia Today (21December 2025) https://www.freemalaysiatoday.com/category/nation/2025/12/21/underage-sex-cases-and-shariah-courts- lawyers-see-constitutional-question/ accessed 1 July 2026.
