Lawyer whose challenge struck down 16 Kelantan syariah provisions flags 11 more

Kelantan-based lawyer Nik Elin Nik Rashid, whose previous successful constitutional challenge prompted the state to redraft its syariah offences law, has raised fresh concerns over the replacement legislation passed on Aug 12.

In a Facebook post, Nik Elin (above) said her reading of the 147-page Syariah Offences (Kelantan) Enactment 2026 revealed at least 11 provisions that could potentially face legal challenges.

“Do not always punish the people (of Kelantan) with laws that may ‘sound good’ in name and wording, but ultimately end up as political rhetoric and can be challenged by Nik Elin 2.0,” she said, referring to the possibility of other critics like her emerging.

Her warning comes despite the Kelantan state government formulating the new syariah offences law to avoid future legal challenges over its constitutionality.

In her post, the lawyer did not list the 11 provisions that could be challenged.

However, when contacted, she said among the provisions that could be challenged were sections 12, 15, and 16.

This covers disturbance to Muslims places of worship; safeguarding private parts; and safeguarding other body parts. The last two provisions are meant to discourage sexual acts contrary to Islamic law.

Nik Elin told Malaysiakini the enactment's definition of a Muslim as per Section 2 could also be challenged.

The definition includes “a body, movement, or group whether incorporated or not incorporated” managed by a Muslim and further covers such a body that carries out “any activities, takes a stand, or shares opinions on any matters related to syariah law”.

Nik Elin said the provision seems to expressly bring companies, organisations, and groups within the statutory definition of a Muslim.

She then contrasted this with the Federal Court’s June 2025 ruling involving SIS Forum (Malaysia).

In that case, the apex court ruled that the constitutional expression “persons professing the religion of Islam” under Item 1 of the State List in the Ninth Schedule of the Federal Constitution refers to natural persons, and not artificial legal entities such as companies.

The court consequently held that a 2014 Selangor fatwa declaring SIS Forum and others subscribing to liberalism and religious pluralism as deviant could not apply to the organisation itself.

No intention to challenge

Despite flagging potential faults, Nik Elin, however, said she has no intention of mounting another court challenge after a two-year legal battle that culminated in the Federal Court striking down 16 provisions of the previous Kelantan Syariah Criminal Code (I) Enactment 2019 in February 2024.

She said she is also disappointed that the state assemblypersons had not done a better job in drafting the replacement legislation.

“It should not only look good in writing, but also be enforceable,” she told Malaysiakini.

“While it is unlikely that I will mount another challenge, there is a strong possibility that an individual or an organisation may do so in the future.

“This will not only expose the incompetence of the law itself but will also prove that the state assembly members who drafted it are equally incompetent,” Nik Elin added.

She conceded, however, that some of the new provisions are "applaudable" but that the implementation is up for debate. She did not elaborate.

She also stressed that she was not out to challenge Islam, only the competence of the law and lawmakers.

In 2024, a nine-member bench chaired by then chief justice Tengku Maimun Tuan Mat, in an 8-1 majority decision, allowed a petition by Nik Elin and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman to invalidate the provisions.

The apex court ruled that the Kelantan state legislature had exceeded its constitutional powers by legislating on matters falling within federal jurisdiction, including areas of general criminal law.

The new enactment, passed unanimously by the Kelantan state legislative assembly, was drafted in response to that ruling.

Rather than merely reinstating the invalidated provisions, Kelantan reformulated several offences around religious obligations imposed on Muslims, in an apparent attempt to keep them within the constitutional powers of state legislatures over Islamic law.

‘We’ve done our best to comply with Constitution’

Previously, Kelantan Menteri Besar Nassuruddin Daud said the state administration was prepared to defend the new enactment if it faced further legal challenges.

When contacted, Islamic development, dakwah, information, and regional relations exco Asri Daud reaffirmed Nassuruddin’s statement.

He said the state government took extensive steps to ensure the enactment complied with the Federal Constitution.

“As for whether the enactment can still be challenged, the state government has done its best by setting up a main committee to draft the enactment, followed by a technical committee.

“They held more than 10 workshops to prepare the new legislation and ensure it was the best possible version,” he said.

Asri said the draft was subsequently referred to the Kelantan Islamic Religious and Malay Customs Council’s (Maik) Council of Ulama and later scrutinised by Maik council members.

He added that it was then brought before the state executive council through the state government’s legal division before being tabled for debate.

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