The enactment reinforces a narrow brand of Islam on its citizens. While the enactment is only applied to Muslim persons, it has an extensive impact on all persons in the state of Kelantan.

Marginalised groups, especially people who use drugs, sex workers, lesbian, gay, bisexual, transgender, queer (LGBTQ+) and gender diverse persons will be further left behind because of the enforcement of the Enactment, and its chilling effect on human rights.

The report analyzes the 2019 Enactment through the human rights and constitutional frameworks. The report finds:

• Provisions under the 2019 Enactment overlap with existing laws at the Federal Level and items on the Federal List, infringing the Federal Constitution, the supreme law of the land. The Federal Constitution has divided the areas of law that could be legislated by the Federal Government and the State Government.

• There are provisions under the 2019 Enactment that clearly intrude on existing Federal laws, such as the Penal Code, Dangerous Drugs Act, and various Acts related to commercial and banking matters.

• The fundamental liberties guaranteed by the Federal Constitution and international human rights law are challenged by the 2019 Enactment. In particular, it will continue to infringe the right to freedom of religion and belief, the right to life, which includes the right to privacy, the right to live with dignity, the right to livelihood, the right to be free from torture; the right to freedom of speech, and association as a result of unnecessary state intervention into all aspects of a Muslim person’s life, and by extension all persons regardless of religious background.

• The 2019 Enactment further expands the notion of space, by extending it to online spaces by introducing provisions that intrude on the privacy of a person to post photos of their choosing on their own social media accounts.

• New sections under the 2019 Enactment criminalises attempt of consensual sexual relations between persons of all genders, as well as transgender and gender diverse persons based on their gender identity. This contravenes the very basis of equality and non-discrimination principles under international human rights law.

• The 2019 Enactment also maintains the corporal punishment of caning, and further increased areas for whipping as a permissible punishment. This is in contravention of international human rights law as well as Article 5 of the Federal Constitution.

With a wider and broader scope for the operation and enforcement of Syariah laws, even more people face increased vulnerability to persecution, while existing vulnerable groups become even more vulnerable to state prosecution. Consequently, the Syariah legal system would also suffer as the projected influx of cases would increase, inadvertently exacerbating existing gaps in access to justice.

Guided by the Federal Constitution and international human rights law, both the state and federal governments should review the 2019 Enactment while pausing on its enforcement until concerns surrounding its legality are meaningfully addressed and resolved. All relevant stakeholders must be meaningfully engaged and consulted without prejudice in this process to ensure protection of human rights for all.