Announcing the 8-1 majority decision, Chief Justice Tengku Maimun Tuan Mat said the state assembly had no power to pass the provisions as part of the enactment as the offences in question are covered under federal law.

Meanwhile, Chief Judge of Sabah and Sarawak Abdul Rahman Sebli dissented and held that the constitutional challenge brought by lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman was an abuse of court process.

The other judges who sat with them were Court of Appeal president Abang Iskandar Abang Hashim, Chief Judge of Malaya Zabidin Diah, and Justices Nallini Pathmanathan, Mary Lim, Harmindar Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais.

Nik Elin Zurina and Tengku Yasmin Nastasha filed the constitutional challenge in 2022 seeking to question the Kelantan assembly’s authority to pass the enactment.

They said that the power to legislate on criminal matters belongs exclusively to the Dewan Rakyat and that state assemblies can only enact laws related to the Islamic faith.

The 8-member majority on the panel, however, did not strike down the remaining two provisions which were the subject matter of the challenge, namely Sections 13 and 30 of the enactment.

Section 13 deals with selling or giving away children to non-Muslims and morally reprehensible Muslim persons, while Section 30 touches on words capable of breaching the peace.

Tengku Maimun said the case is not intended to undermine Islam or the shariah courts but was merely to question whether a state assembly can pass laws without overstepping the powers given to it by the Federal Constitution.

“The shariah courts are not being ‘buried’ as alleged by (lawyer) Yusfarizal Yussoff,” she added.

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