An Analysis of the Provisions of Kelantan Syariah Criminal Code (I) Enactment 2019 from the Perspective of Civil Law

Abstract

The enactment of the Kelantan Syariah Criminal Code Enactment (I) 2019 (SCCE 2019) represents an effort by the Kelantan State Government to enforce Syariah criminal law within the state. The introduction of 24 new provisions constitutes an initiative to codify offences categorised as immoral acts, while also fulfilling the objectives of Islamic law, namely the protection of the five dimensions of maqasid syariah, through the classification of offences under the Enactment notwithstanding the fact that such offences already exist within civil law. This paper analyses the provisions of SCCE 2019 from the perspective of civil law by adopting a qualitative approach through the analysis of relevant documents and existing statutory provisions in Malaysia. The data are analysed comparatively by examining the differences between the two legal frameworks. The findings indicate that several offences under SCCE 2019 overlap with existing laws such as sodomy, words intended to incite a breach of the peace, intercourse with non-human beings, destruction or desecration of places of worship, and acts that cause intoxication. Although these issues have been challenged in the Nik Elin case, this study serves as an important reference in the implementation of amendments to Syariah criminal offences at the state level, with the aim of avoiding disputes and jurisdictional conflicts between the Syariah courts and civil courts, as well as precluding future challenges to the offences provided for under the enactment.

Keywords: Syariah Criminal Code Enactment (I) 2019, provisions, syariah criminal law, civil law, legal overlap, jurisdiction

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