Nik Elin Zurina Nik Abdul Rashid & Anor

[2024] 3 CLJ v. Kerajaan Negeri Kelantan 323

A NIK ELIN ZURINA NIK ABDUL RASHID & ANOR

v. KERAJAAN NEGERI KELANTAN
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ABANG ISKANDAR PCA
B
MOHAMAD ZABIDIN MOHD DIAH CJ (MALAYA)
ABDUL RAHMAN SEBLI CJ (SABAH & SARAWAK)
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
C NORDIN HASSAN FCJ
ABU BAKAR JAIS FCJ
[PETITION NO: BKA-2-05-2022(D)]
9 FEBRUARY 2024
[2024] CLJ JT(3)
D
Abstract – The power of Parliament and State Legislatures in
Malaysia is limited by the Federal Constitution (‘FC’) and the
demarcation of power between the Federation and the States is clear;
there is no overlap. The legislation powers of the Federation and States
E has been expressly set out in the Federal Constitution under the
Legislative Lists, ie, the Federal List and the State List. Parliament, and
likewise, the State Legislature, should not cross the boundaries set by the
FC in enacting the laws. By virtue of art. 71(4) of the FC, if it appears
that in any State, any provision of the FC or of the State Constitution
F is being disregarded, Parliament may, by law, make provisions for
securing compliance with those provisions. In a dispute as to whether the
law is invalid on the ground of lack of power to make the provisions, the
law must be examined as a whole to ascertain whether it deals, in pith
and substance, with a subject-matter upon which the body making it has
G the power to enact in accordance with the Legislative Lists of the FC.

CIVIL PROCEDURE: Locus standi – Parties – Action against Kelantan State

Government – Declarations that certain sections in Kelantan Syariah Criminal
Code (I) [Enactment 14] Enactment 2019 are invalid, null and void – Whether
H public lawsuit – Whether involved constitutional validity of legal provisions –
Whether matter raised subject to judicial scrutiny – Whether types of people or
categories of persons to challenge validity of law constitutionally limited – Federal
Constitution, arts. 4(3), (4) & 128
CONSTITUTIONAL LAW: Federal and State laws – Constitutionality –
I
Declarations that certain sections in Kelantan Syariah Criminal Code (I)
[Enactment 14] Enactment 2019 are invalid, null and void – Whether impugned
provisions concern matters in Federal List, Ninth Schedule of Federal Constitution
324 Current Law Journal [2024] 3 CLJ

(‘FC’) – Whether Legislature of State of Kelantan (‘LSK’) only empowered to make A

laws on ‘the creation and punishment of offences by persons professing the religion
of Islam against precepts of that religion, except in regard to matters included in the
Federal List’ – Whether purely religious offences which, in pith and substance, falls
under Federal List or general criminal law is caught by preclusion clause – Whether
LSK has power to make provisions – Federal Constitution, arts. 4(3), (4) & 128 B

WORDS & PHRASES: ‘criminal law’ – Federal Constitution – Whether expressly

confined to matters included in Federal List – Whether ‘general criminal law’
includes any law that Parliament can enact to create or punish – Nature of offences
– Whether applies to any person in Malaysia irrespective of status, race or religion
– Whether grounded upon general preservation of public order, health, safety, C
security, morality, etc
WORDS & PHRASES: ‘precepts of Islam’ – Federal Constitution – Whether refers
to any matter included in specific entries of item 1 of State List or any other
applicable provisions of Federal Constitution and purely religious offence – Whether
D
purely religious offence relates to aqidah, sanctity of Islamic religion or its
institutions and purely relating to morality in Islam
This was a petition filed by the petitioners in the exclusive original
jurisdiction of the Federal Court seeking a declaration, inter alia, that ss. 11,
13, 14, 16, 17, 30, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47 and/ E
or 48 (‘impugned sections’) of the Kelantan Syariah Criminal Code (I)
[Enactment 14] Enactment 2019 (‘Enactment 2019’) are invalid, and hence
null and void, on the ground that the Legislature of the State of Kelantan
(‘LSK’) and thereby, the respondent, had no power to make those provisions
(‘encl. 26’). This was a constitutional challenge under art. 4(3) read with art.
F
4(4) of the Federal Constitution (‘FC’). The petitioners’ grounds for
challenging the validity of the impugned provisions were: (i) the impugned
provisions were beyond the legislative competence of the LSK; (ii) item 1,
List II (State List), Ninth Schedule of the FC allows the LSK to make laws
on ‘the creation and punishment of offences by persons professing the
religion of Islam against precepts of that religion, except in regard to matters G
included in the Federal List’ (together with art. 74 of the FC); (iii) the
impugned provisions were made pursuant to this legislative field. However,
the impugned provisions concern matters in List I (Federal List), Ninth
Schedule of the FC (‘Federal List’) and/or dealt with by Federal Law. Most
of them relate to ‘criminal law’ under item 4 in the Federal List, which H
includes all matters that could reasonably be viewed as a matter of public
concern relating to peace, order, security, morality, health, or some similar
purpose, in the public sphere. The respondent raised, among others, the
following preliminary objections: (i) vide encl. 68, that leave was granted
erroneously, in that, the petitioners had no locus standi to file this petition or I
in any event, the petition was academic or abstract; and (ii) the petitioners
had failed to name the correct party or that they had named a party who had
no nexus to this petition.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 325

A Held (declaring ss. 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43,
44, 45, 47 and 48 of Enactment 2019 invalid)
Per Tengku Maimun Tuan Mat CJ (for the majority):
(1) Locus standi ought to be relaxed as much as possible to allow any
public-spirited person to file a public lawsuit provided that he has
B
some interest in the matter. All citizens (and in some cases all persons)
are entitled to rely on the FC for protection and to approach the
Federal Court for competency challenge under arts. 4(4) and 128 of the
FC. The fact that legislation has been passed creates a factual
circumstance in which it can be challenged. Article 4(1) of the FC,
C which forms the substantive constitutional basis for all constitutional
judicial review cases, does not discriminate between the circumstances
and situations in which such challenges can be brought or the
categories of persons that can bring them, apart from differentiating
between the nature and procedure for those proceedings, ie, between
D ‘incompetency’ and ‘inconsistency’ challenges. There is nothing
expressed or implied within art. 4(3) and 4(4) of the FC to suggest that
anyone who seeks to challenge the constitutionality of a legal
provision must first prove his or her reasons per se for bringing the
challenge. Therefore, encl. 68 was dismissed. (paras 22 & 29-32)
E (2) Where the petitioner is someone other than the Federation or a State,
art. 4(4) of the FC contemplates that the respondent could be someone
other than the State where the declaration sought is against a State-
legislated provision. It defies any logical interpretation of art. 4(3) and
4(4) of the FC to assert that the Government of a State is not capable
F of being named as a party to petitions such as this. Any Executive
bodies in the State and any Legislative bodies of that State including
its State Legislature are organs of the Government of the State in
question. With these bodies at its disposal, the State is in a position
to defend the validity of the law or laws challenged on the grounds that
G
its Legislature had no power to make it. Hence, the naming of only
the respondent was sufficient to sustain the petition. (paras 43, 45, 48
& 49)
(3) The law must be examined as a whole to ascertain whether it deals,
in pith and substance, with a subject-matter upon which the body
H making it has the power to enact in accordance with the Legislative
Lists. Except for matters that fall within the Concurrent List, when the
two Lists (Federal and State) are understood and applied correctly,
both Parliament and the State Legislatures cannot ordinarily legislate
on matters that fall within the purview of the other. There is a clear
I
demarcation of powers between the Federation and the States. There
is no overlap, and the primary powers of legislation were given to the
Federation including the powers to legislate generally on civil and
criminal law, and procedure. (paras 61, 62 & 76)
326 Current Law Journal [2024] 3 CLJ

(4) The fact that ‘criminal law’ is generally mentioned in item 4 of the A
Federal List means that the primary powers of legislation were
intended to be solely reposed in Parliament leaving only certain
limited powers of legislation to the States in item 1 of the State List
including legislation dealing with the creation and punishment of
offences against the precepts of Islam. ‘Precepts of Islam’ B
constitutionally, refers to one of two of its broad categories: (i) any
matter included in the specific entries of item 1 of the State List or any
other applicable provision of the FC including art. 11(4); and (ii) a
purely religious offence relating to (a) aqidah; (b) sanctity of the
Islamic religion or its institutions; or (c) one purely relating to C
morality in Islam. If the impugned section is in pith and substance a
purely religious offence, the court must test the impugned section
against the Federal List. If it is a purely religious offence, but in pith
and substance it falls under matters of criminal law in the Federal List
or general criminal law which involves an element of public order,
D
safety, health, security, morality, etc, of general application, then it
will be caught by the preclusion clause. (paras 84, 98, 99, 104 & 121)
(5) The phrase ‘criminal law’ is far too broad and nebulous to be accorded
a set definition in the context of the FC that can stand the test of time.
Item 4 of the Federal List also does not expressly confine ‘criminal E
law’ to only matters included in the Federal List; there is a whole
entire second broad category of criminal law, which deals with all
offences other than by direct reference to the Federal List (‘general
criminal law’), that is incapable of a set definition either in substance
or by direct reference to the Federal List. ‘General criminal law’
F
includes any law that Parliament can enact to create or punish offences
the nature of which can apply to any person in Malaysia irrespective
of their status, race or religion, and grounded upon the general
preservation of public order, health, safety, security, morality, etc.
(paras 109, 112 & 116)
G
(6) In pith and substance, s. 11 deals with hate crime. Outwardly and at
first glance, s. 11(1) appears to have a nexus to item 1 of the State List
vis-à-vis the entry relating to ‘… mosques or any Islamic public place
of worship…’, but considered as a whole, in pith and substance, the
purpose of the section is targeted more at public order, harmony and
H
safety. Dealing with hate crime is a matter of ‘general criminal law’
within the second broad category of ‘criminal law’ in item 4 of the
Federal List. As such, s. 11 as a whole cannot be deemed as a ‘purely
religious offence’ and is thus caught by the preclusion clause.
Therefore, the respondent had no power to make s. 11 and it is
therefore unconstitutional. (paras 127, 130, 132 & 134) I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 327

A (7) The pith and substance of s. 13 deals with the creation of offences and
punishment of such offences against the subject of the custody of
Muslim children which can reasonably be construed as being included
in the entry of ‘… Islamic law and personal and family law of persons
professing the religion of Islam...’. in item 1 of the State List. While
B Parliament can make general laws to protect the welfare of children,
the basis of s. 13 is on the grounds of religion. The purpose of s. 13
is in pith and substance, to prevent the propagation of faiths other than
Islam (including the improper practices of Islam) to Muslim children.
This the States have power over, not only by virtue of item 1 of the
C
State List but also by virtue of art. 11(4). Hence, the respondent had
the power to make s. 13 and therefore the section is not
unconstitutional. (paras 139, 142 & 143)
(8) Sections 14, 16, 17, and 47 relate to the same larger subject matter –
sexual offences. Inasmuch as these religious offences do seem to relate
D to the second broader meaning of ‘precepts of Islam’, these offences
if enacted into law, can apply equally to non-Muslims as they can to
Muslims and therefore, these are not purely religious offences such
that the States, including the respondent, could legislate on.
Accordingly, the respondent had no power to make ss. 14, 16, 17 and
E
47 and they are accordingly unconstitutional. Similarly, ss. 43, 44, 45,
and 48, offences strictly limited to vice relating to anything containing
a sexual element, are not a ‘purely religious offence’ as they are
matters of ‘general criminal law’ relating to public order, safety,
health, morality, etc. The sections, in pith and substance, collectively
deal with the offence of solicitation of vice services and prostitution,
F
a crime that affects not just persons professing the religion of Islam but
any person in this country. Therefore, ss. 43, 44, 45 and 48 are caught
by the preclusion clause and are thus, unconstitutional. (paras 150,
151, 152, 153, 156, 157, 228, 234, 237 & 238)

G
(9) The phrase ‘likely to cause breach of peace in any place’ in s. 30 can
be read down in light of the preceding phrase which stipulates: ‘[a]ny
person who wilfully utters or disseminates words contrary to hukum
syarak …’. The fact that this reading down is possible is because both
phrases are conjoined by the word ‘and’. The preservation of hukum
syarak is a matter which falls squarely within the scope of the State
H
Legislatures. Hence, s. 30 does not per se deal with the preservation of
peace or religious harmony which is a matter of general criminal
nature. Rather, it is a purely religious offence enacted with a view to
restricting the propagation of false doctrines and teachings by persons
professing the religion of Islam to others professing the same faith.
I Therefore, s. 30 has, in pith and substance, been validly enacted by
virtue of item 1 of the State List and/or art. 11(4) and was not caught
by the preclusion clause to item 1 of the State List. Section 30 is not
unconstitutional. (paras 161, 162, 165 & 169)
328 Current Law Journal [2024] 3 CLJ

(10) Section 31 seeks to penalise the offence of sexual harassment. Sexual A

harassment cannot be classified as a ‘purely religious offence’ given its
general character as a criminal offence that is capable of general
application in this country. This section, in pith and substance, falls
within the general category of ‘criminal law’ as employed in item 4
of the Federal List and is caught by the preclusion clause of item 1 of B
the State List. The LSK, and by extension the respondent, had no
power to make s. 31 and it is therefore unconstitutional. Section 34,
in pith and substance, deals with the obstruction of justice, perjury and
false evidence specifically in relation to proceedings before the
Syariah Courts. There is no referable entry in item 1 of the State List C
to suggest that independently of the entry ‘the constitution,
organization and procedure of Syariah courts’, there is any other entry
that can justify the making of laws relating to perjury, false evidence
or obstruction of justice. On the other hand, the Federal List does
contemplate the act of obstruction of justice, perjury and false
D
evidence as a specifically identifiable field of offences in item 4(e)(i)
of the Federal List. Therefore, s. 34 was caught by the preclusion
clause and the respondent had no power to make s. 34 and it was thus
unconstitutional. (paras 172, 175, 176, 178 & 181-184)
(11) ‘Anything intoxicating’ or ‘intoxicating substance’ in s. 36 means E
anything intoxicating other than intoxicating drinks dealt with by s.
35. In the absence of definition for ‘intoxicating substance’ in s. 36,
the breadth of what can fall within the definition of ‘anything
intoxicating’ is endless. Having considered the pith and substance of
s. 36, and the fact that it is too broad to be read down, s. 36 is found
F
to deal with matters included in item 14 of the Federal List read with
item 4 of the Federal List. The next section to be considered was s.
37, which deals with offences that relate to gambling. Section 37(1)(b)
purports to deal with a matter that is included in item 4(l) of the
Federal List which should be read together with the general header of
item 4 on ‘criminal law’. In this regard, ss. 36 and 37(1)(b) were G
caught by the preclusion clause and the respondent had no power to
make the sections. Hence, the sections were unconstitutional on
the ground that the respondent did not have the power to make it.
(paras 188, 189, 193, 194, 196, 201 & 202)
H
(12) Section 39, in pith and substance, deals with matters that fall within
the ambit of item 8(f) of the Federal List and is therefore caught by
the preclusion clause and is unconstitutional. Sections 40 and 41, that
generally relate to financing matters and deal with matters falling
within items 4(k) and 7 of the Federal List, must be read with
item 4 of the Federal List generally specifically the words ‘criminal I
law’ because the making of ‘criminal law’ can be referenced to other
entries in the Federal List which, in this case, would be items 4(k) and
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 329

A 7 read together. Even if ss. 40 and 41 deal with offences which relate
to the precepts of Islam in any of its two broad categories, the States
are nevertheless precluded from legislating such laws by virtue of the
preclusion clause to item 1 of the State List. Accordingly, ss. 40 and
41 are unconstitutional. Item 8 of the Federal List makes it clear that
B food control, which when interpreted broadly and including the phrase
that appears after it in ‘adulteration of foodstuffs and other goods’,
would include food standards and safety. Hence, the pith and
substance of s. 42 deals with matters that fall within the Federal List
specifically items 8 and 4 and was thus caught by the preclusion clause
C
to item 1 of the State List which means that the respondent had no
power to make it. (paras 205, 206, 215-217 & 220-222)
Per Abdul Rahman Sebli CJ (Sabah & Sarawak) (dissenting):
(1) It is an abuse of the court process for anyone with no locus standi to drag
the Government, Federal or State, to court to ventilate his or her
D
personal grievances by invoking art. 4(4) read with art. 128(1)(a) of the
FC. The doctrine of locus standi signifies that unless a person has been
directly injured or is adversely affected by the act he is challenging, his
action will not be upheld by the court. He must at least show that he has
a real and genuine interest in the subject matter of the suit although it
E is not necessary to establish infringement of a private right or the
suffering of special damage. (paras 269 & 272)
(2) In Datuk Seri Anwar Ibrahim v. Government of Malaysia & Anor (‘Anwar
Ibrahim (1)’) two constitutional questions were referred to the Federal
Court by the High Court Judge for determination under s. 84 of the
F
Courts of Judicature Act 1964. In refusing to answer the constitutional
questions posed as the questions were found to be abstract, purely
academic and bereft of any actual controversy, the court took the
approach that was more in line with the restrictive application of the
rule on locus standi rather that the liberal approach. In Datuk Bandar
G Kuala Lumpur v. Perbadanan Pengurusan Trellises & Ors and Other Appeals
(‘Taman Rimba’), the Federal Court laid down a new test for locus standi,
that it should be a ‘broad and liberal’ test, which is meant to be more
relaxed or less restrictive in granting leave, especially in public interest
litigation. The test laid down in Taman Rimba, albeit confined to judicial
H review of administrative actions, was in line with the Canadian position
as laid down in the Canada (Attorney General) v. Downtown Eastside Sex
Workers United Against Violent Society. While there was no real conflict
between the test laid down in Anwar Ibrahim (1) and the ‘broad and
liberal’ test in Taman Rimba or the ‘liberal and generous manner’ test
I
in the Canadian case, Anwar Ibrahim (1) should prevail, being a case on
a constitutional challenge under the FC as opposed to the other cases
which were not. (paras 284, 285, 293, 323, 325 & 326)
330 Current Law Journal [2024] 3 CLJ

(3) At the leave stage the court should refuse locus standi to those who appear A
to be ‘busybodies, cranks, and other mischief-makers’. An application
for leave under art. 4(4) of the FC requires a determination that there
is an arguable violation of the petitioner’s constitutional rights, that he
is genuinely interested, and that he is adversely affected by the impugned
provision or provisions. Only then will the court be seized of its B
exclusive original jurisdiction under art. 128(1)(a) of the FC to hear the
merits of the case. The reason why it is necessary for the court to decide
on locus standi before granting leave under art. 4(4) of the FC is to avoid
the futile exercise of hearing the case on the merits if in the end it has
to be struck out because it is found that the petitioner has no standing C
to sue. Only those with legal standing to sue have the legal right to
commence legal action in court. (paras 355 & 358)
(4) A clear line must be drawn between standing to sue and merits of the
challenge. In order to establish locus standi, the petitioners must first of
all show that their challenge to the constitutional validity of the D
impugned provisions does not exist in a factual vacuum by showing that
there is an arguable violation of their constitutional rights. The
petitioners had completely failed to clear this hurdle by failing to point
out which of their constitutional rights that were or had been violated
by the impugned provisions. Their contention that the LSK had no E
competency to enact the impugned provisions was irrelevant to the issue
of locus standi. That was a matter that goes to the substantive merits of
the challenge and not to the issue of standing to sue. The mere fact that
the impugned provisions were arguably unconstitutional was no basis
for the petitioners to claim that their constitutional rights had thereby
F
been compromised. (paras 327-329 & 331)
(5) To relax the rule on locus standi in a constitutional challenge under
art. 4(4) of the FC will potentially open the floodgates for busybodies
to invoke the Federal Court’s exclusive original jurisdiction under
art. 128(1)(a) of the FC for a collateral purpose. If the exclusivity of the G
Federal Court’s original jurisdiction under the article is to mean
anything, leave under art. 4(4) must be given sparingly and only when
standing to sue has been established. The application in encl. 26 was an
abuse of the court process and ought to be struck out. Leave should not
have been granted in the first place and must be set aside. The petitioners
H
had no locus standi to maintain the action and consequently, this court
had no basis in law to exercise its exclusive original jurisdiction under
art. 128(1)(a) of the FC to hear and to decide on the merits of encl. 26.
(paras 267 & 368)

I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 331

A Bahasa Melayu Headnotes

Ini adalah petisyen yang difailkan oleh pempetisyen-pempetisyen dalam
bidang kuasa asal eksklusif Mahkamah Persekutuan memohon deklarasi,
antara lain, bahawa ss. 11, 13, 14, 16, 17, 30, 31, 34, 36, 37(1)(b), 39, 40,
41, 42, 43, 44, 45, 47 dan/atau 48 (‘peruntukan-peruntukan yang
B
dipersoalkan’) Enakmen Kanun Syariah Jenayah Kelantan (I) [Enakmen 14]
2019 (‘Enakmen 2019’) tidak sah, dan oleh itu batal dan tidak sah, atas alasan
bahawa Badan Perundangan Negeri Kelantan (‘BPK’) dan dengan itu,
responden, tiada kuasa untuk menggubal peruntukan-peruntukan tersebut
(‘lampiran 26’). Ini adalah cabaran perlembagaan bawah per. 4(3) dibaca
C bersama-sama dengan per. 4(4) Perlembagaan Persekutuan (‘Perlembagaan’).
Alasan pempetisyen-pempetisyen untuk mencabar kesahan peruntukan-
peruntukan yang dipersoalkan adalah: (i) peruntukan-peruntukan yang
dipersoalkan melampaui keupayaan perundangan BPK; (ii) item 1, Senarai II
(Senarai Negeri), Jadual Kesembilan Perlembagaan membenarkan BPK
D membuat undang-undang berkaitan ‘pewujudan dan penghukuman kesalahan
oleh orang yang menganut agama Islam terhadap perintah agama itu, kecuali
berkenaan dengan perkara yang termasuk dalam Senarai Persekutuan’
(bersama-sama dengan per. 74 Perlembagaan); (iii) peruntukan-peruntukan
yang dipersoalkan dibuat menurut bidang perundangan ini. Walau
E
bagaimanapun, peruntukan-peruntukan yang dipersoalkan berkait dengan
perkara-perkara dalam Senarai I (Senarai Persekutuan), Jadual Kesembilan
Perlembagaan (‘Senarai Persekutuan’) dan/atau ditangani dengan undang-
undang persekutuan. Kebanyakannya berkait dengan ‘undang-undang
jenayah’ bawah item 4 Senarai Persekutuan, yang termasuk kesemua perkara
yang boleh secara munasabah dipandang sebagai perkara melibatkan
F
kepentingan awam berkenaan keamanan, ketenteraman, keselamatan, moral,
kesihatan atau tujuan serupa, dalam linkungan awam. Responden
membangkitkan, antara lain, bantahan-bantahan awal berikut: (i) melalui
lampiran 68, bahawa kebenaran yang diberi adalah khilaf, iaitu,
pempetisyen-pempetisyen tiada locus standi untuk memfailkan petisyen ini
G atau, walau apa pun, petisyen tersebut adalah akademik atau abstrak; dan
(ii) pempetisyen-pempetisyen gagal menamakan pihak yang betul atau
mereka telah menamakan pihak yang tiada kaitan dengan petisyen.
Diputuskan (mengisytiharkan ss. 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39,
40, 41, 42, 43, 44, 45, 47 dan 48 Enakmen 2019 tidak sah)
H
Oleh Tengku Maimun Tuan Mat KHN (keputusan majoriti):
(1) Locus standi perlu dilonggarkan sebaik mungkin untuk membenarkan
sesiapa yang berjiwa awam memfailkan guaman undang-undang
asalkan dia mempunyai kepentingan dalam perkara itu. Kesemua
I
warganegara (dan dalam kes-kes tertentu, kesemua orang) berhak
menyandar atas Perlembagaan untuk perlindungan dan bergantung
pada Mahkamah Persekutuan untuk cabaran kompetensi bawah
332 Current Law Journal [2024] 3 CLJ

per. 4(4) dan per. 128 Perlembagaan. Fakta bahawa perundangan telah A
diluluskan membentuk hal keadaan fakta yang boleh dicabar. Perkara
4(1) Perlembagaan, yang membentuk asas perlembagaan substantif
untuk kesemua kes semakan kehakiman perlembagaan, tidak
mendiskriminasi antara hal keadaan dan situasi dalam mana cabaran
sedemikian boleh dibawa atau kategori orang yang boleh B
memulakannya, selain daripada membezakan antara sifat dan prosedur
untuk prosiding-prosiding tersebut, iaitu, antara cabaran
‘ketakkompetenan’ dan ‘ketidakkonsistenan’. Tiada apa yang
dinyatakan secara jelas atau tersirat dalam per. 4(3) dan per. 4(4)
Perlembagaan untuk mencadangkan bahawa sesiapa yang memohon C
untuk mencabar keperlembagaan satu peruntukan sah terlebih dahulu
perlu membuktikan alasan-alasan itu sendiri untuk membawa cabaran
tersebut. Oleh itu, lampiran 68 ditolak.
(2) Apabila pempetisyen adalah seorang yang selain daripada Persekutuan
atau Negeri, per. 4(4) Perlembagaan menimbangkan bahawa D
responden boleh juga seorang selain daripada Negeri apabila deklarasi
yang dipohon adalah menentang peruntukan yang digubal oleh Negeri.
Adalah bertentangan dengan tafsiran logik per. 4(3) dan 4(4)
Perlembagaan untuk menyatakan bahawa Kerajaan satu Negeri tidak
boleh dinamakan sebagai pihak dalam petisyen seperti ini. Mana-mana E
Badan Eksekutif Negeri dan mana-mana Badan Perundangan Negeri
itu termasuk Badan Perundangan Negeri adalah sebahagian Kerajaan
Negeri yang dipersoalkan. Dengan badan-badan ini sedia ada, Negeri
mempunyai kedudukan untuk membela kesahan undang-undang
tersebut atau undang-undang yang dicabar atas alasan Badan
F
Perundangan itu tiada kuasa untuk membuatnya. Oleh itu,
menamakan hanya responden adalah mencukupi untuk mengekalkan
petisyen ini.
(3) Undang-undang perlu diperiksa secara keseluruhan untuk menentukan
sama ada itu berkait, secara inti pati, dengan perkara yang mana badan G
yang membuatnya mempunyai kuasa untuk menggubal menurut
Senarai Perundangan. Kecuali perkara-perkara yang terangkum dalam
Senarai Bersama, apabila dua Senarai (Persekutuan dan Negeri)
difahami dan digunakan dengan betul, Parlimen dan Badan
Perundangan Negeri, kedua-duanya tidak boleh secara lazimnya
H
menggubal atas perkara yang terangkum dalam bidang kuasa satu lagi.
Wujud pembatasan kuasa yang jelas antara Persekutuan dan Negeri.
Tidak wujud pertindihan dan, kuasa utama perundangan diberi pada
Persekutuan, termasuk kuasa untuk menggubal secara am berkaitan
undang-undang sivil dan jenayah, dan prosedur.
I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 333

A (4) Fakta bahawa ‘undang-undang jenayah’ dinyatakan secara umum

dalam item 4 Senarai Persekutuan bermaksud kuasa-kuasa utama
perundangan diniatkan sebagai kuasa tunggal Parlimen dan
meninggalkan hanya kuasa-kuasa perundangan tertentu yang terhad
pada Negeri dalam item 1 Senarai Negeri termasuk perundangan
B berkaitan dengan pewujudan dan penghukuman kesalahan terhadap
perintah agama Islam. ‘Perintah agama Islam’ secara perlembagaan,
merujuk pada satu daripada dua kategori luasnya: (i) apa-apa perkara
yang termasuk dalam pemasukan khusus item 1 Senarai Negeri atau
apa-apa peruntukan Perlembagaan yang diguna pakai termasuk
C
per. 11(4); dan (ii) kesalahan bersifat keagamaan semata-mata
berkaitan dengan (a) Aqidah; (b) kesucian agama Islam atau institusi-
institusinya; atau (c) satu yang semata-mata berkait dengan moral
dalam Islam. Jika inti pati seksyen yang dipersoalkan bersifat
keagamaan semata-mata, mahkamah perlu menguji seksyen tersebut
terhadap Senarai Persekutuan. Jika itu kesalahan bersifat keagamaan
D
semata-mata, tetapi locusnya terangkum dalam ruang lingkup perkara
undang-undang jenayah dalam Senarai Persekutuan atau undang-
undang jenayah am yang melibatkan unsur keamanan, keselamatan,
kesihatan, ketenteraman, moral, dan lain-lain, yang mempunyai
aplikasi umum, maka itu terangkum dalam klausa sekatan.
E
(5) Frasa ‘undang-undang jenayah’ jauh lebih luas dan kabur untuk diberi
definisi tetap dalam konteks Perlembagaan yang boleh tahan ujian
masa. Item 4 Senarai Persekutuan juga tidak membataskan ‘undang-
undang jenayah’ hanya untuk perkara-perkara yang termasuk dalam
Senarai Persekutuan; terdapat keseluruhan kategori luas kedua
F
undang-undang jenayah yang berkait dengan kesemua kesalahan selain
daripada rujukan langsung pada Senarai Persekutuan (‘undang-undang
jenayah am’), yang tidak boleh diberi definisi tetap sama ada secara am
atau dengan rujukan langsung pada Senarai Persekutuan. ‘Undang-
undang jenayah am’ merangkumi apa-apa undang-undang yang boleh
G digubal Parlimen untuk mewujudkan atau menghukum terhadap
kesalahan-kesalahan yang boleh dikenakan kepada siapa sahaja di
Malaysia tanpa mengira status, bangsa atau agama, dan berasaskan
pada pengekalan keamanan, kesihatan, keselamatan, ketenteraman,
moral dan lain-lain.
H
(6) Inti pati s. 11 berkait dengan jenayah benci. Secara zahir dan sekilas
pandang, s. 11(1) kelihatan mempunyai kaitan dengan item 1 Senarai
Negeri vis-à-vis kemasukan berkaitan ‘… masjid atau mana-mana
tempat ibadat umum agama Islam …’, tetapi apabila dipertimbangkan
secara menyeluruh, intipatinya, tujuan seksyen ini diniatkan lebih
I pada keamanan, keharmonian dan keselamatan. Menangani jenayah
benci adalah perkara ‘undang-undang jenayah am’ dalam ruang
lingkup kategori luas kedua ‘undang-undang jenayah’ dalam item 4
334 Current Law Journal [2024] 3 CLJ

Senarai Persekutuan. Oleh itu, s. 11 secara keseluruhan tidak boleh A

dianggap sebagai ‘kesalahan keagamaan semata-mata’ dan oleh itu,
termasuk dalam klausa sekatan. Oleh demikian, responden tiada kuasa
untuk membuat s. 11 dan itu tidak berperlembagaan.
(7) Inti pati s. 13 berkait dengan pewujudan kesalahan dan penghukuman
B
untuk kesalahan tersebut terhadap perkara penjagaan kanak-kanak
Islam yang boleh secara munasabah ditafsir sebagai termasuk dalam
pemasukan ‘… undang-undang Islam dan undang-undang persendirian
dan keluarga orang yang beragama Islam …’ dalam item 1 Senarai
Negeri. Walaupun Parlimen boleh membuat undang-undang umum
untuk melindungi kebajikan kanak-kanak, asas s. 13 adalah atas alasan C
keagamaan. Inti pati tujuan s. 13 adalah untuk menghalang penyebaran
agama selain Islam (termasuk amalan tidak wajar dalam Islam) kepada
kanak-kanak Islam. Negeri mempunyai kuasa terhadap ini, bukan
hanya melalui item 1 Senarai Negeri, malahan melalui per. 11(4).
Oleh itu, responden mempunyai kuasa untuk membuat s. 13 dan oleh D
itu seksyen ini bukan tanpa perlembagaan.
(8) Seksyen 14, 16, 17 dan 47 berkait dengan perkara besar yang sama –
kesalahan-kesalahan berunsur seks. Walaupun kesalahan-kesalahan
keagamaan ini mungkin berkait dengan maksud luas kedua ‘perintah
agama Islam’, kesalahan-kesalahan ini, jika digubal menjadi undang- E
undang, boleh juga diguna pakai sama rata pada orang bukan Islam
sama seperti orang Islam dan oleh itu, ini bukan kesalahan keagamaan
semata-mata yang mana Negeri, termasuk responden, boleh membuat
undang-undang. Berikutan itu, responden tiada kuasa untuk membuat
ss. 14, 16, 17 dan 47 dan oleh itu, tidak berperlembagaan. Seperti itu F
juga, kesalahan-kesalahan ss. 43, 44, 45 dan 48 terhad secara ketat
pada maksiat berkait apa-apa yang mengandungi unsur seks dan bukan
‘kesalahan keagamaan semata-mata’ kerana itu adalah perkara-perkara
berkenaan ‘undang-undang jenayah am’ berhubung dengan keamanan,
keselamatan, kesihatan, moral dan lain-lain. Inti pati seksyen-seksyen G
ini secara kolektif berkait dengan kesalahan pengumpanan
perkhidmatan maksiat dan pelacuran, satu kesalahan yang bukan
sahaja menjejaskan orang beragama Islam tetapi sesiapa sahaja dalam
negara ini. Oleh itu, ss. 43, 44, 45 dan 48 termasuk dalam klausa
sekatan dan dengan itu, tidak berperlembagaan.
H
(9) Frasa ‘yang mungkin boleh memecahkan keamanan di mana-mana
tempat’ dalam s. 30 boleh dibaca secara terhad berpandukan frasa
awalan yang menyatakan: ‘mana-mana orang yang dengan sengaja
mengeluar atau menyebarkan kata-kata bertentangan dengan hukum
syarak …’. Fakta yang memungkinkan pembacaan terhad adalah I
kerana kedua-dua frasa tersebut digabungkan oleh perkataan ‘dan’.
Pemeliharaan hukum syarak adalah perkara yang terangkum dalam
skop Perundangan Negeri. Oleh itu, s. 30 bukan semata-mata berkait
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 335

A dengan pemeliharaan keamanan atau keharmonian agama yang adalah

perkara yang bersifat jenayah am. Sebaliknya, itu adalah kesalahan
keagamaan semata-mata yang digubal untuk mengehadkan penyebaran
doktrin-doktrin dan ajaran-ajaran salah oleh orang beragama Islam
untuk orang lain yang beragama sama. Oleh itu, inti pati s. 30 telah
B digubal dengan sah berdasarkan item 1 Senarai Negeri dan/atau
per. 11(4) dan tidak termasuk dalam klausa sekatan dalam item 1
Senarai Negeri. Seksyen 30, oleh itu, bukan tidak berperlembagaan.
(10) Seksyen 31 adalah untuk menghukum atas kesalahan gangguan
seksual. Gangguan seksual tidak boleh diklasifikasi sebagai ‘kesalahan
C keagamaan semata-mata’ berikutan ciri-ciri umumnya sebagai
kesalahan jenayah yang boleh diguna pakai secara umum dalam negara
ini. Inti pati seksyen ini terangkum dalam kategori umum ‘undang-
undang jenayah’ yang digunakan dalam item 4 Senarai Persekutuan
dan termasuk dalam klausa sekatan item 1 Senarai Negeri. Badan
D Perundangan Kelantan, dan dengan itu, responden, tiada kuasa untuk
membuat s. 31 menjadikan s. 31 tidak berperlembagaan. Inti pati
s. 34 berkait dengan menghalang keadilan, sumpah bohong dan
keterangan palsu khususnya berkaitan dengan prosiding di Mahkamah
Syariah. Tiada kemasukan yang boleh dirujuk dalam item 1 Senarai
E
Negeri yang mencadangkan bahawa dengan sendirinya, kemasukan
Perlembagaan, organisasi dan tatacara mahkamah Syariah’, tiada
kemasukan lain yang boleh menjustifikasi pembuatan undang-undang
berkaitan sumpah bohong, keterangan palsu atau halangan keadilan.
Sebaliknya, Senarai Persekutuan menimbangkan bahawa halangan
keadilan, sumpah palsu dan keterangan palsu sebagai bidang kesalahan
F
yang boleh dikenalpasti secara khusus dalam item 4(e)(i) Senarai
Persekutuan. Oleh itu, s. 34 termasuk alam klausa sekatan dan
responden tiada kuasa untuk membuat s. 34 dan dengan itu, s. 34 tidak
berperlembagaan.

G
(11) ‘Apa-apa yang mengkhayalkan’ atau ‘bahan yang mengkhayalkan’
dalam s. 36 bermaksud apa-apa yang mengkhayalkan selain daripada
minuman yang memabukkan dalam s. 35. Tanpa definisi untuk ‘bahan
yang mengkhayalkan’ dalam s. 36, apa yang boleh terangkum dalam
definisi ‘apa-apa yang mengkhayalkan’ adalah luas tanpa batasan.
Setelah mempertimbangkan inti pati s. 36, dan fakta bahawa itu adalah
H
terlalu luas untuk dibaca secara terhad, s. 36 didapati berkait dengan
perkara-perkara yang termasuk dalam item 14 Senarai Persekutuan
dibaca bersama-sama dengan item 4 Senarai Persekutuan. Seksyen
seterusnya untuk dipertimbangkan ialah s. 37, yang berkait dengan
perjudian. Seksyen 37(1)(b) bertujuan untuk menangani perkara yang
I termasuk dalam item 4(1) Senarai Persekutuan yang perlu dibaca
bersama-sama dengan tajuk umum item 4 berhubung ‘undang-undang
jenayah’. Dalam hal ini, ss. 36 dan 37(1)(b) termasuk dalam klausa
336 Current Law Journal [2024] 3 CLJ

sekatan dan responden tiada kuasa untuk membuat seksyen-seksyen A

ini. Oleh itu, seksyen-seksyen ini tidak berperlembagaan atas alasan
bahawa responden tiada kuasa untuk membuatnya.
(12) Inti pati s. 39 berkait dengan perkara-perkara yang terangkum dalam
ruang lingkup item 8(f) Senarai Persekutuan dan oleh itu termasuk
B
dalam klausa sekatan dan tidak berperlembagaan. Seksyen 40 dan 41,
yang secara amnya berkait dengan kewangan dan perkara-perkara
dalam rangkuman item 4(k) dan 7 Senarai Persekutuan, perlu dibaca
bersama-sama dengan item 4 Senarai Persekutuan secara am,
khususnya perkataan ‘undang-undang jenayah’ kerana pembuatan
‘undang-undang jenayah’ boleh dirujuk dengan kemasukan lain dalam C
Senarai Persekutuan yang, dalam kes ini, adalah item 4(k) dan 7 dibaca
bersama-sama. Walaupun ss. 40 dan 41 berkait dengan kesalahan-
kesalahan yang berkait dengan perintah agama Islam dalam salah satu
daripada dua kategori luasnya, Negeri walau bagaimanapun terhalang
daripada menggubal undang-undang sedemikian berikutan kluasa D
sekatan dalam item 1 Senarai Negeri. Oleh itu, ss. 40 dan 41 tidak
berperlembagaan. Jelas daripada item 8 Senarai Persekutuan bahawa
kawalan makanan, yang apabila ditafsir secara luas dan termasuk frasa
yang timbul selepas ‘pengadukan bahan makanan dan barangan lain’,
adalah termasuk standard dan keselamatan makanan. Oleh itu, inti pati E
s. 42 berkait dengan perkara-perkara yang terangkum dalam Senarai
Persekutuan khususnya, item 8 dan 4 dan oleh itu termasuk dalam
kluasa sekatan dalam item 1 Senarai Negeri yang bermaksud bahawa
responden tiada kuasa untuk membuatnya.
Oleh Abdul Rahman Sebli HB (Sabah & Sarawak): F

(1) Adalah penyalahgunaan proses mahkamah untuk siapa-siapa tanpa locus

standi mengheret Kerajaan, sama ada Persekutuan atau Negeri, ke
mahkamah untuk mengutarakan kilanan peribadinya dengan
membangkitkan per. 4(4) dibaca bersama-sama dengan per. 128(1)(a)
Perlembagaan. Doktrin locus standi bermaksud bahawa kecuali seseorang G
telah tersakiti atau terjejas teruk oleh tindakan yang dicabarnya,
tindakannya tidak boleh dikekalkan mahkamah. Dia perlu, sekurang-
kurangnya, menunjukkan bahawa dia mempunyai kepentingan nyata dan
sebenar dalam perkara guaman tersebut walaupun tidak perlu
membuktikan pelanggaran hak peribadi atau mengalami apa-apa H
kerugian khas.
(2) Dalam kes Datuk Seri Anwar Ibrahim v. Government of Malaysia & Anor
(‘Anwar Ibrahim (1)’) dua soalan perlembagaan dirujuk ke Mahkamah
Persekutuan oleh Hakim Mahkamah Tinggi untuk penentuan bawah
s. 84 Akta Mahkamah Kehakiman. Apabila menolak untuk menjawab I
soalan-soalan perlembagaan yang dikemukakan kerana soalan-soalan
tersebut didapati abstrak, akademik semata-mata dan tiada apa-apa
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 337

A kontroversi sebenar, mahkamah mengambil pendekatan yang lebih

sejajar dengan penggunaan terhad kaedah untuk locus standi dan bukan
pendekatan liberal. Dalam kes Datuk Bandar Kuala Lumpur v. Perbadanan
Pengurusan Trellises & Ors and Other Appeals (‘Taman Rimba’), Mahkamah
Persekutuan mengemukakan ujian baru untuk locus standi, bahawa ujian
B sepatutnya adalah ‘luas dan liberal’, yang bermaksud lebih longgar atau
kurang batasan apabila memberi kebenaran, khususnya, dalam litigasi
kepentingan awam. Ujian yang dinyatakan dalam Taman Rimba,
walaupun terhad pada tindakan semakan kehakiman pentadbiran, adalah
sejajar dengan kedudukan negara Kanada seperti yang dinyatakan dalam
C
kes Canada (Attorney General) v. Downtown Eastside Sex Workers United
Against Violent Society. Walaupun tiada konflik jelas dalam ujian yang
dinyatakan dalam Anwar Ibrahim (1) dan ujian ‘luas dan liberal’ dalam
Taman Rimba atau ujian ‘cara liberal dan terbuka’ dalam kes Kanada,
Anwar Ibrahim (1) wajar mengatasi, sebagai satu kes cabaran
perlembagaan bawah Perlembagaan berbanding kes-kes lain yang bukan.
D
(3) Di peringkat kebenaran, mahkamah sepatutnya menolak locus standi
untuk sesiapa yang jelas ‘penyibuk, engkol atau pengacau’. Permohonan
kebenaran bawah per. 4(4) Perlembagaan memerlukan penentuan
bahawa terdapat pencabulan hak-hak perlembagaan lain pempetisyen
E
yang dia mempunyai kepentingan, dan terjejas teruk oleh peruntukan
atau peruntukan-peruntukan yang dipersoalkan. Hanya dengan itu,
mahkamah mempunyai bidang kuasa asal eksklusif bawah per. 128(1)(a)
Perlembagaan untuk mendengar merit kes tersebut. Sebab mengapa
perlu untuk mahkamah memutuskan locus standi sebelum memberi
kebenaran bawah per. 4(4) Perlembagaan adalah untuk mengelak
F
perbicaraan kes atas merit yang tidak perlu jika pada akhirnya, itu perlu
dibatalkan kerana didapati pempetisyen tiada hak menyaman. Hanya
dengan hak menyaman di sisi undang-undang, seseorang mempunyai hak
memulakan tindakan undang-undang di mahkamah.

G
(4) Hak menyaman dan merit cabaran perlu dibezakan dengan jelas. Untuk
membuktikan locus standi, pempetisyen perlu terlebih dahulu
menunjukkan bahawa cabaran mereka terhadap kesahan perlembagaan
peruntukan-peruntukan yang dipersoalkan tidak wujud tanpa fakta
dengan menunjukkan bahawa terdapat pencabulan hak perlembagaan
mereka yang boleh dibincangkan. Pempetisyen-pempetisyen jelas gagal
H
melangkaui cabaran ini apabila gagal menunjukkan hak perlembagaan
mereka yang mana telah dicabuli oleh peruntukan-peruntukan yang
dipersoalkan itu. Hujahan mereka bahawa BPK tiada kekompetenan
untuk menggubal peruntukan-peruntukan yang dipersoalkan tidak
relevan dengan isu locus standi. Itu adalah perkara yang melibatkan merit
I substantif cabaran tersebut dan bukan isu hak menyaman. Fakta bahawa
peruntukan-peruntukan yang dipersoalkan tidak berperlembagaan
semata-mata bukan asas untuk pempetisyen-pempetisyen mendakwa
bahawa hak perlembagaan mereka telah dikompromi.
338 Current Law Journal [2024] 3 CLJ

(5) Untuk melonggarkan kaedah berkenaan locus standi dalam cabaran A

perlembagaan bawah per. 4(4) Perlembagaan akan berpotensi membuka
jalan untuk penyibuk membangkitkan bidang kuasa asal eksklusif
Mahkamah Persekutuan bawah per. 128(1)(a) Perlembagan untuk tujuan
kolateral. Jika bidang kuasa asal eksklusif Mahkamah Persekutuan
bawah perkara itu mempunyai maksud, kebenaran bawah per. 4(4) perlu B
jarang-jarang diberi dan hanya diberi apabila hak untuk menyaman telah
dibuktikan. Permohonan dalam lampiran 26 adalah penyalahgunaan
proses mahkamah dan wajar dibatalkan. Kebenaran tidak sepatutnya
diberi terlebih dahulu dan mesti diketepikan. Pempetisyen-pempetisyen
tiada locus standi untuk mengekalkan tindakan dan dengan itu, C
mahkamah ini tiada asas undang-undang untuk melaksanakan bidang
kuasa asal eksklusif bawah per. 128(1)(a) Perlembagaan untuk
mendengar dan memutuskan merit lampiran 26.
Case(s) referred to:
Abdul Karim Abdul Ghani v. The Legislative Assembly Of The State Of Sabah [1988] 1 CLJ D
460; [1988] 1 CLJ (Rep) 1 SC (refd)
Adesanya v. President of the Federal Republic And Others [1981] 5 SC 112 (refd)
AG Fed v. AG Lagos State [2017] 8 NWLR (PT1566) 20 (refd)
Ah Thian v. Government Of Malaysia [1976] CLJU 3; [1976] 1 LNS 3 FC (refd)
Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violent
Society [2012] SCR 524 (refd) E
Che Omar Che Soh v. PP & Another Appeal [1988] CLJU 150; [1988] 1 LNS 150 SC (refd)
Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374 (refd)
Datuk Bandar Kuala Lumpur v. Perbadanan Pengurusan Trellises & Ors And Other
Appeals [2023] 5 CLJ 167 FC (refd)
Datuk Seri Anwar Ibrahim v. Government Of Malaysia & Anor [2020] 3 CLJ 593 FC (refd)
Datuk Seri Anwar Ibrahim v. Government Of Malaysia & Anor [2021] 6 CLJ 1 FC (refd) F
Durning v. Citibank, NA 950 F 2d 1419 (1991) (refd)
Gin Poh Holdings Sdn Bhd v. The Government Of The State Of Penang & Ors [2018] 4 CLJ
1 FC (refd)
Government Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ 219; [1988]
1 CLJ (Rep) 63 SC (refd)
G
Iki Putra Mubarrak v. Kerajaan Negeri Selangor [2020] 6 CLJ 133 FC (refd)
Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465 FC (refd)
IRC v. Ex parte National Federation of Self Employed and Small Businesses [1982] AC
617 (refd)
Janta Dal v. HS Chawdhary [1992] Supp 1 SCR 226 (refd)
Karpal Singh v. Sultan Of Selangor [1987] 2 CLJ 342; [1987] CLJ (Rep) 686 HC (refd) H
Ketua Pegawai Penguatkuasa Agama & Ors v. Maqsood Ahmad & Ors And Another
Appeal [2020] 10 CLJ 748 CA (refd)
Liba v. Koko [2017] 11 NWLR (PT1576) 335 (refd)
Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air Dan Komunikasi & Anor
[2014] 2 CLJ 525 FC (refd)
Mamat Daud & Ors v. The Government Of Malaysia [1988] 1 CLJ 11; [1988] 1 CLJ I
(Rep) 197 SC (refd)
Michigan Millers Mutual Ins Co v. Bronson Plating Co, 197 Mich App 482 (refd)
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 339

A Myriam v. Mohamed Ariff [1971] CLJU 88; [1971] 1 LNS 88 HC (refd)

PP v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284 SC (refd)
Robert Linggi v. The Government Of Malaysia [2011] 7 CLJ 373 HC (refd)
Shanti Kumar R Canji v. Home Insurance Co of New York [1974] AIR 1719 (refd)
SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor
(Intervener) [2022] 3 CLJ 339 FC (refd)
B Straman v. Lewis 220 Mich App 448 (refd)
Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999]
2 CLJ 707 FC (refd)
Sulaiman Takrib v. Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other
Cases [2009] 2 CLJ 54 FC (refd)
Tan Eng Hong v. Attorney-General [2012] 4 SLR 476 (refd)
C
Wong Shee Kai v. Government Of Malaysia [2022] 10 CLJ 1 FC (refd)
Yong Tshu Khin & Anor v. Dahan Cipta Sdn Bhd & Anor And Other Applications
[2021] 1 CLJ 631 FC (refd)
Legislation referred to:
Courts of Judicature Act 1964, ss. 83, 84
D Federal Constitution, arts. 3(1), (4), 4(1), (3)(a), (b), (4), 5, 11(4), 77, 121(1A),
128(1)(a), 160(2), 162, Ninth Schedule List I items 3, 4(e)(i), (h), (k), (l), 7, 8(f),
14(c), (d), 22, List II item 1
Federal Territory (Planning) Act 1982, r. 5(3)
Kelantan Syariah Criminal Code (I) Enactment 2019, ss. 1(3), 2(1), 5, 11(1), (2)
13, 14, 16, 17, 30, 31, 34, 35, 36, 37(1)(a), (b), 39, 40, 41, 42, 43(2), 44, 45, 47,
E 48
Penal Code, ss. 298A, 376
Rules of Court 2012, O. 53 r. 2(4)
Rules of the Federal Court 1995, r. 7
Syariah Criminal Offences (Selangor) Enactment 1995, s. 28
F Other source(s) referred to:
Professor MP Jain, Administrative Law in Malaysia and Singapore Malayan Law
Journal, Malaysia 1997, p 749
For the petitioners - Malik Imtiaz Sarwar, Surendra Ananth & Lim Yvonne; M/s Surendra
Ananth
G For the respondent - Idham Abd Ghani, Kamaruzaman Muhammad Arif, Nik Suhaimi
Nik Sulaiman, Arham Rahimy Hariri, Adam Mohamed, Mohd Syazwan Muhsin
Negara, Sofiah Omar & Muhammad Izzat Dzulkafli; SLAs
Amicus Curiae
Jabatan Hal Ehwal Agama Islam Kelantan - Yusfarizal Yusoff & Mohd Faizi Che Abu;
M/s Faizi & Assocs
H Sisters in Islam - New Sin Yew, Siti Summaiyah Ahmad Jaafar & Edmund Bon Tai Soon;
M/s Amerbon
Majlis Agama Islam dan Adat Istiadat Melayu Negeri Kelantan (MAIK) - Tabian Tahir
& Noor Amalina Mursiedy; M/s Hashim Amran Tabian Ahmad
Majlis Agama Islam Wilayah Persekutuan (MAIWP) - Adnan Seman & Muhammad
Rafique Rashid Ali; M/s Adnan Sharida & Assocs
I Watching Brief
Badan Peguam Syarie Wilayah Persekutuan - Mohd Tajuddin Abd Razak, Muhamad
Nakhaie Ishak & Majdah Muda; M/s Hasshahari & Partners
340 Current Law Journal [2024] 3 CLJ

Malaysian Bar - Roshalizawati Muhammad & Wan Norfarhan Liyana Wan A

Baharunddin; M/s SC Chua, Shaliza & Partners
Mohd Faiez Md Suhami; M/s Faiez & Co
Karen Cheah Yee Lynn & Fahri Azzat; M/s Fahri, Azzat & Co
Persatuan Peguam-Peguam Muslim Malaysia (PPMM) - Zainul Rijal Abu Bakar,
Mohamed Haniff Khatri Abdulla & Aidil Khalid; M/s Chambers of Zainul Rijal
Persatuan Peguam Syarie Malaysia (PGSM) - Hanif Hassan; M/s Hanif Hassan & Co B
Rosfinah Rahmat; M/s Rosfinah & Co
Majlis Agama Islam dan Adat Istiadat Melayu Perlis (MAIPs) - Fakhrul Azman Abu
Hassan & Ahmad Edham Abdulwani Mohamad; M/s Azaine & Fakhrul
Majlis Agama Islam Negeri Islam Negeri Sembilan (MAINS) - Hanif Hassan & Sumaiyah
Jamil; M/s Hanif Hassan & Co
C
Majlis Ugama Islam Sabah (MUIS) - Zakaria Ahmad; M/s Zakaria Ahmad & Co
Majlis Agama Islam dan Adat Melayu Perak (MAIPK) - Adham Jamalullail Ibrahim
& Norazali Nordin; M/s Adham & Assocs
Majlis Agama Islam dan Adat Melayu Terengganu (MAIDAM) - Sallehudin Harun
& Yusfarizal Yusoff; M/s Sallehudin Harun & Partners
Majlis Agama Islam Melaka (MAIM) - Rosfinah Rahmat & Mohd Adli Ithnin; M/s Adli D
& Co
Reported by S Barathi

JUDGMENT
E
Tengku Maimun Tuan Mat CJ (majority):
Introduction
[1] My learned brother Abdul Rahman Sebli, CJSS is dismissing the
petition on the sole ground that the petitioners had no locus standi to file the
petition. The other members of the coram have seen my judgment in draft F
and have expressed their agreement with it. This is the majority judgment of
the court.
[2] In this judgment, unless otherwise expressly or impliedly stated, any
references to ‘articles’, ‘clauses’, ‘schedules’, ‘lists’ shall be taken to mean
any references to those of the Federal Constitution (‘FC’). Likewise, any G
references to ‘sections’ means any reference to the sections of the Kelantan
Syariah Criminal Code (I) [Enactment 14] Enactment 2019 which
incidentally by virtue of s. 1(3) of the same, applies to Muslims only and that
too, only in the State of Kelantan.
H
The Federal Court’s Exclusive Original Jurisdiction
[3] This is a petition filed in the exclusive original jurisdiction of the
Federal Court. The original jurisdiction of the Federal Court is very narrow
and limited and the type of cases that can be filed directly in the Federal
Court’s original jurisdiction are therefore very specific (see arts. 4(3), 4(4) I
and 128(1)).
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 341

A [4] The first type of cases involves disputes on any question between
States or between the Federation and any State. Purely by way of example,
if the Federation were to sue or be sued by the State of Pahang, or if the State
of Perak were to sue or be sued by the State of Perlis, these suits can be filed
directly in the Federal Court – without leave.
B
[5] The second category of cases that can be filed directly in the Federal
Court is any dispute where the petition seeks a declaration that a law is
invalid on the ground that Parliament or the State Legislature of any State
had no power to make the law in question. These kinds of petitions unlike
the first category of cases, cannot be filed straight away in the Federal Court
C if the party filing them is neither the Federation nor any State in Malaysia.
These kinds of petitions can only be filed after a single judge of the Federal
Court has granted leave to file the petition – again assuming that the party
filing such a case is neither the Federation nor a State.
[6] “Leave of court” simply means something that requires prior
D
permission from the court. In other words, a potential petitioner must first
seek the permission of a single judge of the Federal Court before he or she
can begin to file the petition in which he or she will challenge the law on
the ground that either Parliament or the State Legislature had no power to
make it. For a deeper understanding on leave, see the judgment of this court
E in Wong Shee Kai v. Government Of Malaysia [2022] 10 CLJ 1; [2022] 6 MLJ
102 (‘Wong Shee Kai’).
[7] The judgment in Wong Shee Kai also explains why the second category
of cases are called ‘incompetency challenges’ as opposed to the more generic
challenges called ‘inconsistency challenges’. In other words, in practice, we
F
call a case that is filed in the Federal Court’s original jurisdiction to seek a
declaration that a law is invalid on the grounds that Parliament or the State
Legislature had no power to make it as ‘incompetency challenges’.
[8] The two types of categories stated above that invoke the Federal
Court’s original jurisdiction are exclusive to the Federal Court. This means
G
that such kinds of cases can only be filed in the Federal Court and no other
court.
[9] In this original jurisdiction petition, the petitioners seek a declaration
that ss. 5, 11, 13, 14, 16, 17, 30, 31, 34, 36, 37, 39, 40, 41, 42, 43, 44, 45,
H 47 and/or 48 of the Kelantan Syariah Criminal Code (I) [Enactment 14]
Enactment 2019 (‘Enactment 2019’) are invalid, and hence null and void, on
the ground that the Legislature of the State of Kelantan (‘LSK’) and thereby
the respondent had no power to make those provisions. We shall collectively
refer to the sections under challenge as the ‘impugned sections’.
I
342 Current Law Journal [2024] 3 CLJ

[10] At this stage, we also find it appropriate to address the submissions of A

Majlis Agama Islam & Adat Istiadat Melayu Negeri Kelantan (‘MAIK’) as
amicus curiae to the effect that it suggests that in petitions such as this, filed
pursuant to arts. 128(1), 4(3) and 4(4), this court can only issue a declaration
of “invalidity” without the attendant phrase that the impugned law is “void”.
This argument must be rejected for it fails to understand that as explained in B
Wong Shee Kai, ‘incompetency challenges’ are a specific category of
‘inconsistency challenges’. ‘Incompetency challenges’ in addition to
arts. 128(1), 4(3) and 4(4) are also covered by art. 4(1). As such, where a law
is invalid on the ground that the relevant Legislature had no power to make
it, it would, by virtue of art. 4(1), be null and void. And thus, in making a C
declaration of invalidity under cls. (3) and (4) of art. 4, the court can and
should also declare those laws void under art. 4(1).
[11] At the outset of the oral arguments, the petitioners withdrew their
challenge against ss. 5 and 37(1)(a). Those two provisions are thus no longer
included in the impugned sections. D

Judicial Independence And Public Controversy

[12] Before proceeding into the issues raised in this petition, we must first
note our observations that of late, certain decisions of the Judiciary
especially of this court have been called into question on grounds other than E
the reasons for those decisions. Our judgments are publicly available and it
would behove the public, including politicians, to read them and all persons
are free to criticise or comment on our judgments on legitimate and educated
grounds.
[13] In fact, it has even been brought to our attention that an advocate F
appearing before this court, Yusfarizal Yusoff has made certain remarks
regarding this case and this court’s prior decision in Iki Putra Mubarrak
v. Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465; [2021] 2 MLJ 323
(‘Iki Putra’) to the effect these cases have or might adversely affect Islam or
Syariah Courts in this country. And while he has filed an affidavit responding
G
to or refuting these allegations in these proceedings, the fact remains that any
explanation, given the nature of the statements made, remains an afterthought
as the damage has been done. It only proves the adage that one, especially
a lawyer arguing the case in question, should think before he speaks. We are
not quick to say at this stage that he has committed contempt of court, we
are merely saying he has given enough reason to the Attorney General, as H
the guardian of public interest, to exercise his discretion, to take the
necessary course of action so that the matter can be decided in the right
forum.
[14] The record must be set straight. The present case, contrary to
I
erroneous and politically-fuelled suggestions, has absolutely nothing to do
with undermining the religion of Islam. The allegation that any decision of
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 343

A this court could destroy or even uphold Islamic law in this country is
therefore not even remotely close to what the present petition actually
entails.
[15] As was explained regarding the Federal Court’s exclusive original
jurisdiction earlier, the only issue in this case is whether the respondent, via
B
the LSK, was constitutionally empowered to make the impugned sections.
Put another way, the only issue in this case is, which is the correct legislative
body to enact the impugned sections: Parliament or the respondent through
the LSK? The petition has nothing to do with the substantive principles of
Islamic law or its position in this country.
C
Preliminary Issues
Locus Standi
[16] Before we consider the merits of the petition, we will deal with several
preliminary objections raised by the respondent.
D
[17] The first objection is contained in encl. 68, an application seeking to
move this court to hold that leave in this case was granted erroneously.
[18] Legally speaking, the respondent is allowed to file such an application
having regard to Wong Shee Kai. Simply put, if we agree with the respondent
E that leave was improperly granted by the single Federal Court Judge, then
this petition will have no basis. As a result, we would have to strike out this
petition on a technicality.
[19] The premise of the respondent’s first preliminary objection is that the
petitioners have no locus standi to file this petition or that in any event, the
F present petition is academic or abstract. The respondent contends that the
petitioners are busybodies who have no basis to initiate this case in that the
petitioners are not even adversely affected by any of the impugned sections.
In addition, there is no real dispute or controversy between them and the
respondent.
G
[20] In response, the petitioners suggest that they either do, or intend later
on in life, to reside in Kelantan. The petitioners suggest that they have
properties in Kelantan and do have some semblance of a life there. They are
therefore residents of Kelantan and Enactment 2019 is a law that can be used
against them. Their argument suggests, at its core, that the impugned sections
H exist as law, and can be enforced against them. They therefore maintain that
they have a basis to challenge the impugned sections.
[21] It is our view that the petitioners do have locus standi to maintain the
present petition which is neither academic nor abstract. Our reasons are as
follows.
I
344 Current Law Journal [2024] 3 CLJ

[22] Locus standi refers to the standing or right of the person to sue. The A
most recent decision by this court on this issue is that in Datuk Bandar Kuala
Lumpur v. Perbadanan Pengurusan Trellises & Ors And Other Appeals [2023]
5 CLJ 167; [2023] 3 MLJ 829 (‘Taman Rimba’). In that case, the court
endorsed the minority judgment of Eusoffe Abdoolcader SCJ in Government
Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ 219; [1988] 1 CLJ B
(Rep) 63; [1988] 2 MLJ 12 (‘Lim Kit Siang’). Summarising the analysis
therein, locus standi ought to be relaxed as much as possible to allow any
public-spirited person to file a public lawsuit provided that he has some
interest in the matter.
[23] Taman Rimba is an apt example of administrative judicial review. C
There, the decision of certain public bodies was challenged on the basis of
statutes and regulations relating to town and country planning. The present
case is a constitutional judicial review wherein the Federal Court is obligated
to decide the constitutionality of the impugned sections.
D
[24] In a case such as the present one involving constitutional judicial
review, we opine that locus standi must be adjudged on principles even
broader than the ones already applicable in Taman Rimba. The starting point
for this is the words in art. 4(1), as follows:
Supreme law of the Federation
E
4. (1) This Constitution is the supreme law of the Federation and any law
passed after Merdeka Day which is inconsistent with this Constitution
shall, to the extent of the inconsistency, be void.
[25] The keywords are ‘passed after Merdeka Day’. Any challenge brought
under art. 4(1) must have been so brought on the premise of that law having F
been ‘passed after Merdeka Day’. Thus, the fact that a law exists by virtue
of it having been passed is a factual situation in which the law can be
challenged. For if that law is inconsistent with the FC upon its passing,
art. 4(1) dictates that the said law is invalid. In light of the presumption of
constitutionality, until and unless that law is challenged and struck down in G
the appropriate forum, then the law must continuously be presumed valid.
[26] Giving the respondent’s proposition its deepest possible
consideration, what they suggest is that if a law has been passed either by
Parliament or the State Legislatures, and it is constitutionally invalid, then
going by the rules of locus standi, the courts must pause on deciding the H
validity of that law until in effect the “correct person” shows up before the
courts to challenge that law. This proposition is not supported by the
language of art. 4(1) because nowhere is it suggested in art. 4(1) that the
courts should now filter the litigants that come before them seeking to
challenge the constitutional validity of legal provisions for the reason that the I
question of validity comes second to the personality before the court.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 345

A [27] In our view, the following passage in the judgment of Abdoolcader

SCJ in PP v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284; [1987]
2 MLJ 311 (‘Yap Peng’), is instructive (at p. 289 (CLJ); p. 319 (MLJ)):
... The power of the Public Prosecutor under section 418A is uncanalized,
unconfined and vagrant. The Deputy however assures us that this power
B will only be exercised reasonably ... Sankey J, however, had no difficulty
in holding the Executive action illegal, and he pointed out (at page 791)
that the Crown’s argument that the Executive could be trusted begs the
question, for the court could concern itself only with the bare issue of the
possession of the claimed power, and not whether it would be reasonably
exercised.
C
[28] The above passage, if read within its larger context, suggests that the
very existence of a legal power is enough of a reason for question quite apart
from the question on the manner in which it was exercised. Taman Rimba
has extended and clarified the scope of locus standi in relation to the manner
in which administrative power was exercised. This is typical in a statutory
D
judicial review because the question of the manner of exercise of power will,
to some extent, depend upon against whom it is exercised. Even in that
situation, Taman Rimba has watered down the test of locus standi in the
manner suggested by this court in the judgment. What more in this case
where we are dealing with constitutional judicial review.
E
[29] We therefore take the view that the fact that legislation has been
passed creates a factual circumstance in which it can be challenged. Article
4(1), which forms the substantive constitutional basis for all constitutional
judicial review cases, does not discriminate between the circumstances and
situations in which such challenges can be brought or the categories of
F
persons that can bring them, apart from differentiating between the nature
and procedure for those proceedings ie, between ‘incompetency’ and
‘inconsistency’ challenges.
[30] As explained in Wong Shee Kai, ‘incompetency challenges’ are a
G specific kind of ‘inconsistency challenge’ which in addition to being
governed by art. 4(1), are also governed by art. 4(3) and 4(4). There is
nothing expressed or implied within art. 4(3) and 4(4) to suggest that anyone
who seeks to challenge the constitutionality of a legal provision must first
prove his or her reasons per se for bringing the challenge (apart from having
to advance arguments on why the provisions they challenge are invalid on
H
grounds stated in art. 4(3)).
[31] All citizens (and in some cases all persons) are entitled to rely on the
FC for protection and to approach the Federal Court for competency
challenges under arts. 4(4) and 128 of the Federal Constitution. The passing
I of a law (whether Federal or State) is a legislative act or conduct which
always remains subject to judicial scrutiny in line with the principle of
346 Current Law Journal [2024] 3 CLJ

separation of powers. We find no constitutional basis to limit the types of A

people or categories of persons who can at the very minimum, challenge the
existence of the law as a separate constitutional cause of action in addition
to cases where a person affected by the exercise of such powers against them
can also challenge the validity of that same law.
B
[32] We therefore dismiss encl. 68 as did the single Federal Court Judge
who heard the same locus standi arguments when granting leave to file the
present petition.
Failure To Name The Correct Parties
[33] Another preliminary objection taken by the respondent is that the C
petitioners have failed to name the correct party or that they have named a
party who has no nexus to this petition. The respondent claims that this
procedural infirmity is fatal, meaning that the petition should and can be
dealt with on this ground alone.
[34] The sole respondent in this suit is the Government of the State of D
Kelantan. The respondent submits that the petitioners should have instead
named the LSK or the Jabatan Hal Ehwal Agama Islam Kelantan
(‘JAHEAIK’). This is because, in their submission, these Executive bodies
are responsible for the enforcement of the impugned sections as they are
concerned with the execution of the law and are able to defend it while the E
respondent has no such jurisdiction to do the same. They further submit that
the LSK and the respondent are separate legal entities.
[35] In reply, the petitioners submit that this issue of suing the correct party
was raised at the leave stage. It is their position that the respondent, though
having raised that issue then, appeared to have abandoned the issue at the F
hearing of the leave application. As such, they submit that the respondent
appeared to have acknowledged that it is the correct party to be sued alone
in this matter.
[36] Whatever the position taken by the parties in this case, we are of the
G
view that whether or not the respondent is the correct party is an issue of law
and it should therefore be addressed even if it was raised and abandoned
earlier.
[37] As a matter of law, the respondent’s position is that there is nothing
in the Constitution of the State of Kelantan (‘Kelantan State Constitution’) to H
define what the Government of the State of Kelantan means. The respondent
however referred us to the provisions on the State Executive Council and
other provisions on executive power.
[38] With respect, we are unable to agree with the respondent’s
submission. The fact remains that this is a petition seeking a declaration in I
terms of art. 4(3) and (4) namely that the LSK had no power to make the
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 347

A impugned sections. As such, the provisions of the FC should apply before

any other provisions including the Kelantan State Constitution. In this
regard, art. 160(2) defines “Executive Council” as follows:
“Executive Council” means the Cabinet or other body, however called,
which in the Government of a State corresponds, whether or not the
B members of it are Ministers, to the Cabinet of Ministers in the
Government of the Federation (and in particular includes the Supreme
Council in Sarawak);
[39] While there is no express definition of “Government of a State” in the
FC, art. 162 and numerous other articles refer to the phrase “Government
C of a State” or “State Government” interchangeably. In addition, the
definition above clarifies that the Executive Council of the State (howsoever
called) comprises a part of that State. The Government of a State is, in this
sense, regarded by the FC as a separate entity such that “in the Government
of a State”, the Executive Council is a part.
D [40] The impugned act in this case relates to the power to make the
impugned sections and not the enforcement of the law. In other words, in
petitions such as this, the Federal Court is concerned with whether the law
was enacted within the powers conferred unto the relevant State Legislature
and not so much on how it is enforced.
E
[41] Viewed in this way, art. 4(3) and 4(4) warrant closer attention and they
state as follows:
(3) The validity of any law made by Parliament or the Legislature of any
State shall not be questioned on the ground that it makes provision with
respect to any matter with respect to which Parliament or, as the case may
F
be, the Legislature of the State has no power to make laws, except in
proceedings for a declaration that the law is invalid on that ground or:
(a) if the law was made by Parliament, in proceedings between the
Federation and one or more States;

G (b) if the law was made by the Legislature of a State, in proceedings

between the Federation and that State.
(4) Proceedings for a declaration that a law is invalid on the ground
mentioned in Clause (3) (not being proceedings falling within paragraph
(a) or (b) of the Clause) shall not be commenced without the leave of a
judge of the Federal Court; and the Federation shall be entitled to be a
H
party to any such proceedings, and so shall any State that would or might
be a party to proceedings brought for the same purpose under paragraph
(a) or (b) of the Clause.
[42] Paragraph 4(3)(b), in particular, says that if the law is made by the
State Legislature and it is challenged on the grounds that the State Legislature
I
had no power to make it, and the party making such a challenge is the
Federation, then the proceedings in that case would have to be between the
Federation and the State in question. And thus, if the petitioner in this case
348 Current Law Journal [2024] 3 CLJ

was the Federation, the present respondent, being the Government of the A
State of Kelantan, would be the correct respondent as representing the State
of Kelantan.
[43] Article 4(4) then deals with a situation where the potential petitioner
is someone other than the Federation or any of the State Legislatures. In
B
relation to such a petitioner, art. 4(4) says that in such proceedings, the
Federation shall be entitled to be a party to the proceedings as would or
might be any State that is so concerned. Interpreting it in this way, where
the petitioner is someone other than the Federation or a State, art. 4(4) does
contemplate that the respondent can be someone other than the State where
the declaration sought is against a State-legislated provision. C

[44] Considered as a whole, had the petitioner been the Federation, the FC
contemplates that suing the State concerned would not only have been
sufficient but actually a mandatory act of compliance with art. 4(3). In the
case of a party that is neither the Federation nor the State, even in such a case,
D
the FC in art. 4(4) recognises that the State shall be entitled to be a party.
And thus, considering art. 4(4) in light of paras. (a) and (b) of art. 4(3), the
Government of the State in question is a proper party to a petition where a
declaration to the effect of the present petition is sought.
[45] We are therefore of the view that it defies any logical interpretation E
of arts. 4(3) and 4(4) to assert that the Government of a State is not capable
at all of being named as a party to petitions such as this.
[46] In other words, since art. 4(3)(a) and (b) mandatorily require the State
(and this logically means the Government of that State) to be a party and in
all other cases mentioned in art. 4(4) the States are entitled to be a party, it F
means that irrespective of any other Executive bodies falling within the
Federation or that State’s jurisdiction, the Government of that State is a
proper party to be sued.
[47] Following from the above reasoning, the only question remaining is
whether the Government of that State can be named as the sole respondent G
in a petition where leave is granted under art. 4(4). In our view, that can be
so.
[48] While for prudence and completeness, the Legislature of that State
should be made a party to the proceedings, the fact that they are not is not
fatal to the petition. At the very minimum, it is sufficient if the Government H
of the State is named as respondent. After all, any Executive bodies in the
State and any Legislative bodies of that State including its State Legislature
are organs of the Government of the State in question. With these bodies at
its disposal, the State is therefore in a position to defend the validity of the
law or laws challenged on the grounds that its Legislature had no power to I
make it.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 349

A [49] We therefore hold that naming only the respondent in the present case
is sufficient to sustain this petition. This preliminary objection is accordingly
also dismissed.
Purported Expert Evidence
B [50] There is a final preliminary issue. Counsel for the petitioners has
referred us to encls. 41, 42 and 43 that have been filed in court by the
respondent. These enclosures purport to be expert opinions on behalf of the
respondent on the constitutional interpretation of the impugned sections.
Enclosures 42 and 43 in particular, also alluded to: (i) ‘precepts of Islam’
C
encompass aqidah, syariah and akhlak; and (ii) ‘precepts of Islam’ are
derived from the Quran and Sunnah.
[51] This issue of expert evidence has been beyond clarified and dealt with
in Iki Putra. In summary, the only party entitled to interpret the FC is the
courts and no other party is allowed to expound a legal opinion on how those
D provisions can be interpreted as a matter of law. Parties are entitled to
canvass their rivalling opinions in the form of legal submissions which can
be decided by this court but providing “expert” evidence on the
interpretation to be afforded is not an accepted method of constitutional
interpretation. In any event, the Islamic principles of aqidah, syariah or
E
akhlak are not matters for our consideration. What falls for our consideration
is whether the respondent/LSK has exceeded its legislative powers.
Enclosures 41, 42 and 43 are hereby expunged and have no bearing on the
outcome of this case.
Analysis/Decision
F Item 1 Of The State List And The Doctrine Of Pith And Substance
[52] We now come to the main point of this petition – the constitutional
validity of the impugned sections. Before we proceed to consider the
arguments, we must note again that the petitioners have withdrawn their
challenge against ss. 5 and 37(1)(a). This is because, according to counsel for
G
the petitioner, the petitioners concede that they are constitutional. Thus, for
clarity, we accept the withdrawal of their challenge against the said ss. 5 and
37(1)(a) and in light of this withdrawal and the doctrine of presumption of
constitutionality, ss. 5 and 37(1)(a) continue to be presumed constitutional.

H [53] In respect of the impugned sections, in the course of his oral argument,
counsel for the petitioners alluded to a table in his written submission
wherein, among other things, comparisons are made between Enactment
2019 on the one side, and Federal Law on the other side dealing with the
same subject matter. On this basis, part of the petitioners’ submission is that
because there is a Federal law in existence on that subject matter, the States
I
are incompetent to enact laws on the same subject matter as the
corresponding Federal Law.
350 Current Law Journal [2024] 3 CLJ

[54] In their defence of the validity of the impugned sections, the A

respondent maintains that the petitioners have failed to establish how the
impugned sections are in pari materia to any of their possible federal
equivalents. In fact, the respondent argues that the impugned sections are
different from any Federal counterpart.
B
[55] This line of argument by the petitioners and the respondent was
expressly explained and rejected in Iki Putra. And so, we find the need to
remind all counsel that as officers of the court, whose duties are foremost to
the court, ignoring propositions from recent cases that they cite or even citing
older cases that have been overruled is not a practice befitting of the legal
profession. C

[56] The relevant portion of item 1 of the State List, in granting the States
power to legislate on Syariah law, stipulates thus:
1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan
and Putrajaya, ... creation and punishment of offences by persons D
professing the religion of Islam against precepts of that religion, except in
regard to matters included in the Federal List; ...
[57] In direct response to the incorrect way of interpreting item 1 based on
a prior decision of this court in Sulaiman Takrib v. Kerajaan Negeri Terengganu;
Kerajaan Malaysia (Intervener) & Other Cases [2009] 2 CLJ 54; [2009] 6 MLJ E
354 (‘Sulaiman Takrib’), this court said the following in Iki Putra:
[51] With respect, we are unable to agree with His Lordship’s observations
as regards his categorisation of which legislature (Federal or State) is
empowered to make law within the context of item 1 of the State List.
The words employed by item 1 since Merdeka Day has always been
F
‘except in regard to matters included in the Federal List’. The words are
not: ‘except in regard to matters included in the Federal Law’. There is
a critical distinction between the two categorisations and His Lordship
appears to favour the latter approach over the former. Analysing the
constitutional validity of state-legislated law on the basis of whether the
same subject matter has already been included in the Federal Law, again G
would render the words ‘Federal List’ in the preclusion clause to item 1
nugatory.
[52] Hence, we are of the view that it is untenable to take the position
that the power of the State Legislature to make laws by virtue of the
preclusion clause is limited to the Federal Laws that Parliament has not
already enacted. It remains to be tested in every given case where the H
validity of a state law is questioned, for the courts to first ascertain
whether a law in question is within the jurisdiction of Parliament to enact
and not necessarily whether there is already a Federal Law in existence
such that the state-promulgated law is displaced. Ultimately, as cautioned
by this court in Sulaiman Takrib, the distinction would have to be drawn
I
on a case by case basis.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 351

A [58] The above clarifies and belies the simplistic approach of comparing
Federal Law with State law and concluding that the basis for a State to make
law can be nullified or justified on the existence or absence of a Federal law
(as the case may be). To reiterate, the words employed in item 1 are ‘except
in regard to matters included in the Federal List’ and not ‘except in regard
B to matters included in Federal Law’. As such, any argument that takes the
approach in Sulaiman Takrib is rejected.
[59] In Iki Putra, this court conveniently referred to this phrase ‘except in
regard to matters included in the Federal List’ as the preclusion clause to
item 1 of the State List. Construing the preclusion clause in its proper sense,
C it would stand to reason that, except in the Federal Territories, Parliament
too cannot base its jurisdiction to make laws within the purview of item 1
of the State List simply because the States have yet to enact the applicable
law. This view was also clearly articulated by Mohamed Azmi SCJ, who in
dealing with the constitutionality of s. 298A of the Penal Code in Mamat
D Daud & Ors v. The Government Of Malaysia [1988] 1 CLJ 11; [1988] 1 CLJ
(Rep) 197; [1988] 1 MLJ 119 (‘Mamat Daud’), said at p. 203 (CLJ); p. 125
(MLJ):
... The fact that the Administration of Muslim Law Enactment of the
states has yet to provide specifically for punishment against such acts
E cannot, in the absence of express provision in the Constitution, confer
Parliament with the power to legislate over such religious matters, and
that is why the Muslim Courts (Criminal Jurisdiction) Act 1975 has been
enacted to confer on state religious courts jurisdiction over offences
against precepts of the religion.

F
[60] Earlier at p. 200 (CLJ); p. 123 (MLJ), His Lordship said:
In determining whether section 298A, in pith and substance, falls within
the class of subject matter of “religion” or “public order”, it is the
substance and not the form or outward appearance of the impugned
legislation which must be considered. The impugned statute may even
declare itself as dealing with religion, but if on investigation as a whole,
G it is in fact not so, the court must so declare.
[61] We endorse the approach advocated in Mamat Daud as the correct one
and it is in relation to the doctrine of pith and substance. It is not the outward
appearance of the law in question and the words it uses that matter, rather
the law must be examined as a whole to ascertain whether it deals, in pith
H
and substance, with a subject matter upon which the body making it has the
power to enact in accordance with the Legislative Lists. This is the second
part of the petitioners’ approach and this is the only approach that we will
consider, not the earlier approach of merely determining whether there is in
existence Federal Laws against which the State law can be compared and
I deemed beyond the scope of legislative jurisdiction.
352 Current Law Journal [2024] 3 CLJ

[62] And thus, except for matters that fall within the Concurrent List, when A
the two lists (Federal and State) are understood and applied correctly, both
Parliament and the State Legislatures cannot then ordinarily legislate on
matters that fall within the purview of the other. This is an important feature
of our FC because we are a federation of States all of whom, between
themselves and the Federation, have been allowed their own respective fields B
of power of legislation.
[63] In fact, it is our view that in light of the most recent pronouncements
by this court especially in Iki Putra and SIS Forum (Malaysia) v. Kerajaan
Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339;
[2022] 2 MLJ 356 (‘SIS Forum’) which followed settled reasoning in earlier C
cases such as Mamat Daud, the law on this subject is very clear. In other
words, the present case requires only a direct application of the law to
determine the outcome, premised only on the facts. And for the record, we
are not at all persuaded by the respondent’s and Yusfarizal Yusof’s
submissions that Iki Putra was wrongly decided. D

Principles Of Federalism In Malaysia

[64] As we see it, cases such as the present petition arise because of two
misapprehensions which relate to the understanding of ‘criminal law’.
[65] The first misapprehension that arises is that the States can enact any E
law, even if that law deals with criminal law, if there is no Federal law
dealing with that issue. This misapprehension is also manifest when it is
assumed that even if there is a Federal law on that subject matter, the States
can still enact State criminal law if that criminal law is worded differently
or achieves the same outcome as the Federal legislation but by different F
means.
[66] The second misapprehension that arises is that the States can enact any
law so long as that law deals with the precepts of Islam. This ties in with the
first misunderstanding that even if there is a Federal law on that subject, as
long as the State law deals with the same issue from an Islamic perspective G
and from the lens of Islamic precepts, then the said impugned law is validly
enacted in accordance with item 1 of the State List.
[67] There is a method to our FC and this method is borne out of history.
To get a fuller understanding of history, we agree with and endorse the
judgment of the Court of Appeal in Ketua Pegawai Penguatkuasa Agama & Ors H
v. Maqsood Ahmad & Ors And Another Appeal [2020] 10 CLJ 748; [2021]
1 MLJ 120 (‘Maqsood Ahmad’).
[68] In summary, prior to the British occupation of this land, Malaya,
Sabah and Sarawak had their own legal systems. Prior to 1957, there was a
I
huge clarion call for independence from the British. As a result, parties from
various divides discussed the creation of the Federal Constitution.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 353

A [69] The British legal system is different from ours in many ways but the
biggest and most fundamental difference is that in Britain, Parliament is
supreme. This means that Parliament is the ultimate constitutional authority
and its Parliament may make any laws that can change even the
constitutional basis of the United Kingdom (‘UK’). The same is not true here
B as here, we have a written constitution.
[70] Our FC forms the basis of the existence of all three arms of our Federal
Government and all the State Governments. There are portions within it
which govern Malaysian territory, the Yang di-Pertuan Agong, the
Executive, the Legislatures (Federal and State), the Judiciary, various
C important public commissions, fundamental rights, citizenship and so on.
[71] In relation to the States and their Governments, the Eighth Schedule
caters for a template State Constitution. And thus, minimally, the
Constitution of every State in our Federation must contain the provisions as
set out in the Eighth Schedule. Given the strong federalist nature of our FC,
D
the States cannot legislate their own written constitutions as they please. In
fact, by virtue of art. 71(4), if it appears to Parliament that in any State any
provision of the FC or of the State Constitution is being disregarded,
Parliament may by law make provision for securing compliance with those
provisions.
E
[72] We then also have the Ninth Schedule which creates three different
legislative fields. The first is the Federal List which provides for the general
fields upon which Parliament can legislate. The second is the State List
which stipulates what fields of laws within which the State Legislatures can
enact State laws. And finally, we have the Concurrent List which sets out
F
joint areas upon which Parliament and the State Legislature can both make
laws. Sabah and Sarawak also have additional supplements to the State List.
[73] As clarified by Azahar Mohamed CJM in Iki Putra, the FC was
formulated with a central bias, meaning that the primary powers of
legislation are to be accorded to Parliament, with certain other limited
G
powers to the States. This fact is apparent not only in the structure of our
FC, but is also clarified by the Reid Commission, which is the Commission
principally responsible for the creation of our FC.
[74] In particular, in the Reid Commission Report (‘RCR’), the Reid
H Commission noted that a part of its terms of reference included as follows:
3. The members of the Commission were appointed in the name of Her
Majesty the Queen and Their Highnesses the Rulers with terms of
reference as follows:
...
I
To make recommendations for a federal form of constitution for the
whole country as a single, self-governing unit within the Commonwealth
based on Parliamentary democracy with a bicameral legislature, which
would include provision for:
354 Current Law Journal [2024] 3 CLJ

(i) the establishment of a strong central government with the States A

and Settlements enjoying a measure of autonomy (the question of
the residual legislative power to be examined by, and to be the
subject of recommendations by the Commission) and with
machinery for consultation between the central Government and
the States and Settlements on certain financial matters to be
specified in the Constitution; ... B
(emphasis added)
[75] In commenting on the creation of a strong Federal Government with
a defined set of matters that it can legislate coupled with a list for autonomous
State Governments, the Reid Commission observed as follows in the RCR:
C
82. We have already explained the way in which powers are now divided
between the Federation and the States and we have noted some of the
difficulties which have arisen from this division (Chap. II). We think that
it would be impracticable to continue the present system in so far as, with
regard to many matters, it confers legislative power on the Federation and
executive power on the States. If Malaya is to be a democratic country D
the Government of each State must be controlled by its elected
Legislative Assembly, and we must envisage the possibility that from time
to time the party in power in one or more of the States may differ in
outlook and policy from the party in power in the Federation ...
But, before proceeding to deal with specific subjects, we wish to emphasise E
that with regard to any which are in the Federal List not only should the
Federal Parliament have the sole power to legislate but the Federal
Government should also have the ultimate responsibility for determining
policy and controlling administration. And similarly, with regard to any
subject in the State List, in general the State Legislature should have the
exclusive power to legislate and the State Government should have the F
exclusive responsibility for determining policy and controlling
administration. We say that “in general” the State Legislative Assembly and the
State Government should have these powers and responsibilities because we think it
necessary to recommend that in certain particular circumstances which we shall
explain later the Federation should have overriding powers.
(emphasis added) G

[76] Again, the above historical document clarifies that there is a clear
demarcation of powers between the Federation and the States. There is no
overlap and the primary powers of legislation were given to the Federation
including the powers to legislate generally on civil and criminal law, and
procedure. H

[77] The drafters did keep in mind the possibility of reserve powers as is
apparent with the inclusion of art. 77 which states as follows:
Residual power of legislation
77. The Legislature of a State shall have power to make laws with respect I
to any matter not enumerated in any of the Lists set out in the Ninth
Schedule, not being a matter in respect of which Parliament has power to
make laws.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 355

A [78] Yet, in commenting on the initial draft version of art. 77, the Reid
Commission noted that because the division of legislative powers between
the Federation and the States was so clear and distinct, any cause for the
States to legislate on residual powers might never actually arise. This is what
they said, and we think it strongly proves the point on the general federalist
B nature of the Malaysian system of Government, as per the following
observation in the RCR:
121. Our terms of reference contain the following passage: “The question
of residual legislative power to be examined by and to be the subject of
recommendations by the Commission.” The present position is that the
C Rulers have agreed to specific powers being exercised by the Federation
under the Federation Agreement of 1948 but that any residual powers
that may exist have been retained by the States. We see no advantage
in altering the position and we recommend (art. 73) that it should
continue. The situation of the residual powers makes no difference to the
construction of any of the specific powers in the Federal List: for example
D the defence power is just as wide under our recommendation as it would
be if the residual powers were transferred to the Federation. Moreover
it is unlikely that the residual power will ever come into operation because
the Legislative Lists, read in the light of the clauses in art. 68, appear to
us to cover every foreseeable matter on which there might be legislation.
The only real effect of leaving the residual power with the States is that
E if some unforeseen matter arises which is so peculiar that it cannot be
brought within any of the items mentioned in any of the Legislative Lists,
then that matter is within the State powers.
[79] And so, that deals with the first aspect of the misapprehension on the
powers to legislate. Both Parliament and the State Legislatures are confined
F to their respective legislative lists and ordinarily, they can only make laws
within their own respective legislative lists subject to certain exceptions that
are neither applicable nor relevant to the present petition.
[80] This leads us to the second misapprehension which is to wit, that the
States can enact any law so long as that law was enacted in accordance with
G the precepts of Islam.
[81] On this misapprehension, we note as an adjunct to the clear Federal-
State legislative divisions, our historical documents that led to the FC
(as does the FC itself), indicate that matters relating to Islamic law would be
conferred and confined to the States except in the Federal Territories. As
H
such, not only were the States accorded a limited power to legislate by what
is confined to the State List, the inclusion of Islamic law and personal law
into the State List was done historically with the clear intention of limiting
the kinds of laws that the States can enact on that subject matter.

I [82] The further addition to the preclusion clause to item 1 of the State List
was to ensure that the powers of the States cannot extend to the point of
legislating on matters included in the Federal List. The fact that ‘criminal
356 Current Law Journal [2024] 3 CLJ

law’ is generally mentioned in item 4 of the Federal List means that the A
primary powers of legislation were intended to be solely reposed in
Parliament, leaving only certain limited powers of legislation to the States
in item 1 of the State List including legislation dealing with the creation and
punishment of offences against the precepts of Islam.
B
[83] Thus, inasmuch as the official religion of Malaysia is Islam, the
application of Islamic law is itself limited to what is provided for mostly in
the State List and with some exceptions in the Federal List. In this regard,
we find it necessary to refer to the historical analysis undertaken by the
former Supreme Court in Che Omar Che Soh v. PP & Another Appeal [1988]
CLJU 150; [1988] 1 LNS 150; [1988] 2 MLJ 55 (‘Che Omar’). In particular, C
this is what Salleh Abas LP (speaking for the unanimous Supreme Court),
said at p. 56:
... When the British came, however, through a series of treaties with the
sultans beginning with the Treaty of Pangkor and through the so-called
British advice, the religion of Islam became separated into two separate D
aspects, viz. the public aspect and the private aspect. The development of
the public aspect of Islam had left the religion as a mere adjunct to the
ruler’s power and sovereignty. The ruler ceased to be regarded as God’s
vicegerent on earth but regarded as a sovereign within his territory. The
concept of sovereignty ascribed to humans is alien to Islamic religion
because in Islam, sovereignty belongs to God alone. By ascribing E
sovereignty to the ruler, ie, to a human, the divine source of legal validity
is severed and thus the British turned the system into a secular institution.
Thus all laws including administration of Islamic laws had to receive this
validity through a secular fiat.
[84] His Lordship explains how with the arrival of the British, our general F
legal system started to lean more towards secularity. The Islamic aspects of
it became more confined to private law. On the same page, the Supreme
Court continued to observe as follows:
... [T]he establishment of the Federated Malay States in 1895, with the
subsequent establishment of the Council of States and other G
constitutional developments, further resulted in the weakening of the
ruler’s plenary power to such an extent that Islam in its public aspect had
become nothing more than a mere appendix to the ruler’s sovereignty.
Because of this, only laws relating to family and inheritance were left to
be administered and even this was not considered by the court to have
territorial application binding all persons irrespective of religion and race H
living in the state. The law was only applicable to Muslims as their
personal law. Thus, it can be seen that during the British colonial period,
through their system of indirect rule and establishment of secular
institutions, Islamic law was rendered isolated in a narrow confinement
of the law of marriage, divorce, and inheritance only. (See M.B. Hooker,
I
Islamic Law in South-east Asia, 1984.)
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 357

A [85] And at pp. 56 to 57, the Supreme Court concluded:

In our view, it is in this sense of dichotomy that the framers of the
Constitution understood the meaning of the word “Islam” in the context
of art. 3. If it had been otherwise, there would have been another
provision in the Constitution which would have the effect that any law
B contrary to the injunction of Islam will be void. Far from making such
provision, art. 162, on the other hand, purposely preserves the continuity
of secular law prior to the Constitution, unless such law is contrary to the
latter.
...
C We thank counsel for the efforts in making researches into the subject,
which enabled them to put the submissions before us. We are particularly
impressed in view of the fact they were not Muslims. However, we have
to set aside our personal feelings because the law in this country is still
what it is today, secular law, where morality not accepted by the law is
not enjoying the status of law. Perhaps that argument should be
D addressed at other forums or at seminars and, perhaps, to politicians and
Parliament. Until the law and the system is changed, we have no choice
but to proceed as we are doing today.
(emphasis added)
[86] Clauses (1) and (4) of art. 3 provide thus:
E
Religion of the Federation
3. (1) Islam is the religion of the Federation; but other religions may be
practised in peace and harmony in any part of the Federation.
...
F (4) Nothing in this article derogates from any other provision of this
Constitution.
[87] What we can explain from the foregoing is this. The general legal
system in Malaysia leans more towards secularity without being purely
secular. What this means is that the source of our law is not purely from
G
divine or Islamic law and the reason why we are not a purely secular State
is because limited allowance has been made in the FC for the legislation and
application of Islamic law. In this sense, we are a unique nation with a mixed
or dual secular and Islamic law legal systems that are meant to operate
independently of each other.
H
[88] In the past, the superior civil courts had delved into matters involving
purely Islamic law such as the case of Myriam v. Mohamed Ariff [1971] CLJU
88; [1971] 1 LNS 88; [1971] 1 MLJ 265. However, upon the introduction
of art. 121(1A), that division is now clear. The superior civil courts cannot
adjudicate on the substance of Islamic issues just as the Syariah courts cannot
I
adjudicate upon matters that are not contained within their jurisdiction.
358 Current Law Journal [2024] 3 CLJ

[89] We postulate, from historical and academic references, that Islamic A

law was not made the overarching law of the land and the basis of the
Malaysian legal system because Malaysia is a multi-racial and multi-religious
society. And so, our general criminal law needed to be developed such that
it could be applied equally to all persons regardless of race or religion. This
power was conferred unto Parliament generally by virtue of item 4 of the B
Federal List which says, in relevant part to criminal law:
4. Civil and criminal law and procedure and the administration of justice,
including:
(a) constitution and organization of all courts other than Syariah
Courts; C

(b) jurisdiction and powers of all such courts;

...
(e) subject to paragraph (ii), the following:
D
(i) contract; partnership, agency and other special contracts; master
and servant; inns and inn-keepers; actionable wrongs; property
and its transfer and hypothecation, except land; bona vacantia;
equity and trusts; marriage, divorce and legitimacy; married
women’s property and status; interpretation of Federal Law;
negotiable instruments; statutory declarations; arbitration; E
mercantile law; registration of businesses and business names;
age of majority; infants and minors; adoption; succession,
testate and intestate; probate and letters of administration;
bankruptcy and insolvency; oaths and affirmations; limitation;
reciprocal enforcement of judgments and orders; the law of
evidence; F
(ii) the matters mentioned in paragraph (i) do not include Islamic
personal law relating to marriage, divorce, guardianship,
maintenance, adoption, legitimacy, family law, gifts or
succession, testate and intestate;
... G

(f) official secrets; corrupt practices;

...
(h) creation of offences in respect of any of the matters included in the
Federal List or dealt with by Federal Law; ... H
[90] By contrast, and at the risk of repetition, item 1 of the State List
provides, in part relevant to this case:
1. Except with respect to the Federal Territories of Kuala Lumpur, Labuan
and Putrajaya, Islamic law and personal and family law of persons
professing the religion of Islam, including ... creation and punishment of I
offences by persons professing the religion of Islam against precepts of
that religion, except in regard to matters included in the Federal List; ...
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 359

A [91] Having regard to the central bias in favour of the Federal Parliament
when it comes to criminal legislation, and when the two lists (Federal and
State) are read together, the intention behind item 1 of the State List is that
it was intended to apply only to offences that are purely religious in nature.
In other words, offences that relate purely to the precepts of Islam and
B nothing else. The following was also made amply clear by Azahar Mohamed
CJM in Iki Putra, as extensively quoted as follows:
[119] But there’s still one important constitutional question that remains,
and this requires clarification, as it was claimed by the second respondent
that if every offence is criminal law then no offence may be created by
C the State Legislature pursuant to item 1 of the State List, rendering the
State Legislature’s power to legislate redundant. At paras [106] and [107],
I have expressed my views that the State Legislature’s power to legislate
on offences against the precepts of Islam is limited. It is neither exclusive
nor comprehensive and is residual and not inherent. Does that render
item 1 of the State List completely otiose and denuded of all meaning?
D
[120] I do not agree with this contention. It cannot stand in law.
According to our concept of Federalism, the FC guarantees (as is clear
from its terms) the States with legislative power over offences and
punishments against the precepts of Islam with the exception of matters
included in the Federal List. That itself refutes the contention of the
E
second respondent.
[121] What is important then is to determine the parameter of the real
nature of the offence that is within the ambit of the phrase ‘offences and
punishments against the precepts of Islam except in regard to matters
included in the Federal List’. This raises the question of how to formulate
a test to demarcate the boundary that defines the extent of the legislative
F competence of the State Legislatures over this matter. In the main, there
are three distinct categories of offences that shaped Syariah Criminal
offences in Malaysia. These are:
(a) offences relating to aqidah. For example wrongful worship,
deviating from Islamic belief or contrary to hukum syarak and
G teaching false doctrines;
(b) offences relating to sanctity of religion and its institution. For
example insulting the Qur’an and Hadith, religious teaching without
tauliah, failure to perform Jumaat prayers, disrespecting the holy
month of Ramadan and non-payment of zakat or fitrah; and
H (c) offences against morality. For example consuming intoxicating
drinks, sexual intercourse out of wedlock (zina) and close proximity
(khalwat).
[122] As can be seen, these are offences in relation to Islamic religion
practiced in this country that must conform to the doctrine, tenets and
I practice of the religion of Islam. In short, I refer to these offences as
religious offences. The list of offences enumerated at [121] above is
undoubtedly not exhaustive, and there may be other religious offences
360 Current Law Journal [2024] 3 CLJ

that possibly be validly enacted by the State Legislatures that may emerge A
from the facts and circumstances of each case. In my opinion, all these
offences are purely religious in nature that is directly concerned with
religious matters or religious affairs. Any attempt to regulate the right of
persons professing the religion of Islam to a particular belief, tenets,
precepts and practices by way of creation of offences can only be done
by legislation passed by State Legislatures pursuant to cl. 2 of art 74 of B
the FC. As stated by Mohamed Azmi SCJ in Mamat Daud (at p 125) ‘...
to create an offence for making an imputation concerning such subject
matter is well within the legislative competence of the State Legislatures
and not that of Parliament’. When the true test is applied, the inevitable
conclusion is that these religious offences have nothing to do with
C
‘criminal law’. I find it hard to think that the religious offence is a law with
respect to ‘Criminal law’ as envisaged by the Federal List. As Hashim
Yeop A Sani SCJ said in Mamat Daud (at p. 27) (citing Attorney-General for
Ontario & Ors v. Canada Temperance Federation & Ors [1946] AC 193 and
Canadian Federation of Agriculture v. Attorney-General for Quebec & Ors [1951]
AC 179), ‘... The true test is always to see the real subject matter of the D
legislation’. These are ta’zir offences punishable with imprisonment and/
or fine in accordance with Syariah Courts (Criminal Jurisdiction) Act 1965.
Ta‘zir, according to established Islamic law principle are offences and
punishment that are not divinely prescribed and therefore, are left for the
authority to formulate. Another point is that, these are religious offences
under the Syariah Court’s jurisdiction and applicable only to persons E
professing the religion of Islam and ought to be passed not by the Federal
Parliament but by the State Legislatures on the basis of the State List.
Surely, in my opinion, a legislation pertaining to such prohibited acts or
omissions amounts to a legislation upon Islamic religion, on which only
states have legislative competence. In its applicability to the religion of
Islam, the religious offences must be within the competence of the State F
Legislatures. It is the states alone that can say what should be the
religious offences, which are reserved expressly for legislation by the State
Legislatures.
[92] The other reason why the FC was drafted in this way is so that
Muslims would not be subject to different laws and legal systems for the same G
offences when compared to non-Muslims for example on general laws like
rape, corruption, theft, robbery, etc. If the demarcation between the Federal
and State Lists is understood and applied correctly, it will be noticed that
Muslims and non-Muslims are subject to the same general set of criminal
laws. However, because of the duality of our legal system, Muslims are, in H
addition to the earlier-mentioned laws, also subject to Islamic law and
offences. In terms of personal law and adat, the Muslims follow their own
set of laws as opposed to non-Muslims who are bound by laws passed by
Parliament.
I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 361

A [93] It was in this context that in [59] to [60] of Iki Putra, this court clarified
the limited scope of application of the judgment of this court in Sukma
Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999]
2 CLJ 707; [1999] 2 MLJ 241 (‘Sukma Darmawan’). What we have alluded
to earlier provides a full answer to the respondent’s proposition that State-
B legislated ‘criminal law’ offences which should be passed by Parliament can
be disguised as purported offences that deal with precepts of Islam, and that
such State-passed legislation can somehow co-exist with federally-legislated
criminal law on the same subject.
[94] It must be said again as it was said in Iki Putra that many criminal law
C offences such as theft, robbery, rape and corruption would naturally also
encompass and are caught by the precepts of Islam. But, because these
offences fall within the general purview of criminal law, only Parliament has
the power to enact such laws to the exclusion of the State Legislatures. This
is the general system dictated by our FC – specifically the separation of
D legislative powers between the Federal Legislature (Parliament) and the State
Legislatures.
[95] When all these technicalities are appreciated properly, it will be
understood that the placement of Islamic law, including the powers to create
and punish offences against the precepts of Islam (except with regard to
E matters in the Federal List) in item 1 of the State List, was done to preserve
the sanctity of the religion of Islam and to ensure its continuous survival in
our legal system. In addition, the inclusion of art. 121(1A) was a celebrated
act to preserve the substantive validity and integrity of the Syariah Courts.
Interpretive Principles On ‘Precepts Of Islam’, ‘Purely Religious Offences’ And
F
‘Criminal Law’
Fundamental Principles
[96] Given the brief historical analysis above and the dichotomy between
Federal and State powers of legislation, it comes as no surprise why there is,
G sometimes, confusion in relation to how the Federal and State Lists should
be interpreted especially where it concerns the preclusion clause. This
confusion arises because of the complex and finely interwoven language in
which the Federal and State Lists are worded and a need to find a means to
preserve and protect both Malaysia’s secular and Syariah dual legal systems.
H [97] The most confusing phrase in the entry: ‘creation and punishment of
offences by persons professing the religion of Islam against precepts of that
religion, except in regard to matters included in the Federal List’ in item 1
of the State List is the emboldened portion, ie, the ‘preclusion clause’.
(emphasis added)
I
362 Current Law Journal [2024] 3 CLJ

[98] Upon reading the first part of the phrase in the entry, one has to ask A
the question: what are the precepts of Islam which is the phrase that exists
by virtue of the entry ‘by persons professing the religion of Islam against
precepts of that religion’? Without attempting to water down the meaning of
the phrase, it is our view that ‘precepts of Islam’ constitutionally, refers to
one of two of its broad categories. Both these categories are applicable in B
relation to the offences that the States can create and punish by virtue of
item 1 of the State List.
[99] The first broad category of ‘precepts of Islam’ in relation to offences
that can be created and punished under item 1 of the State List is specific and
it includes, in our view, any matter included in the specific entries of item C
1 of the State List or any other applicable provision of the FC including
art. 11(4). For example, item 1 of the State List provides in part the power
of the States to enact laws with respect to ‘Islamic law relating to testate and
intestate, betrothal, marriage, divorce, dower, maintenance, adoption,
legitimacy, guardianship, gifts, partitions and non-charitable trusts ...’. Since D
these laws are only applicable to persons professing the religion of Islam and
are enacted on the basis of them complying with Islamic law, it can be said
that such laws will encompass the precepts of Islam.
[100] And thus logically, if any offence is enacted by the States for the
creation and punishment of offences against the ‘precepts of Islam’ by E
reference to any of the expressly stated entries in item 1 of the State List, it
cannot possibly fall within the Federal List. The preclusion clause cannot
therefore apply in such cases.
[101] That said, in our reading of item 1 of the State List, the meaning of
F
‘precepts of Islam’ is not just confined to the entries included specifically in
item 1 of the State List or anywhere else in the FC which deals with the
exclusive power of the States to enact laws such as art. 11(4).
[102] This is because the portion of item 1 that deals with the creation and
punishment of offences does not say anything to the effect: ‘creation and
G
punishment of offences by persons professing the religion of Islam against
precepts of that religion as included herein ...’ (emphasis added). Instead, it
specifically mentions in effect, ‘precepts of Islam’ without expressly limiting
the meaning of that phrase specifically to the entries in item 1 of the State
List. As such, because the phrase adopted is larger in meaning than that is
already included and spelt out in item 1, it follows that the meaning of H
‘precepts of Islam’ though it includes the entries in item 1 of the State List,
it is not expressly limited to the said item 1 entries.
[103] The inclusion of the preclusion clause lends credence to the
interpretation that ‘precepts of Islam’ in item 1 of the State List though it
I
includes State-legislated offences enacted by reference to item 1 of the State
List, is not only confined to those entries. This is because, following the
earlier stated logic, if any State-legislated offence was enacted by reference
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 363

A to any entry in item 1 of the State List, it would then have been within the
State Legislature’s jurisdiction and there would have been no reason to
include the preclusion clause if that is all was meant by ‘precepts of Islam’.
[104] This brings us to the second broad category of ‘precepts of Islam’. It
is our view that the second broad category of the phrase ‘precepts of Islam’
B
is its more open-ended definition of anything that can possibly be an offence
in the religion of Islam and its laws that is not otherwise directly referenced
to any of the express entries in item 1 of the State List.
[105] Even though this is the second meaning of that phrase, and it is a broad
C
category, it is by no means an unbridled invitation to the States to enact any
criminal law they so wish. Following Iki Putra, this aspect of ‘precepts of
Islam’ offences, considered in its proper context, can only truly include
(in the words of Azahar Mohamed CJM in [122] of Iki Putra) offences that
are ‘purely religious in nature’.
D [106] What this means is that any law that is enacted by the States with a
view to creating or punishing offences against the precepts of Islam, whether
in its first broad category or second broad category can, for convenience, be
called a ‘religious offence’.
[107] What then is a ‘purely religious offence’? Although the second
E meaning of ‘precepts of Islam’ is open-ended, we would postulate that a
‘purely religious offence’ is an offence in the second broad category (which
is not included in the Federal List). Because this aspect of State legislation
deals with the creation and punishment of offences, the specific aspect of the
Federal List with which there runs a risk of being breached is item 4 of the
F Federal List which deals with Parliament’s power to make ‘criminal law’.
[108] It does not therefore come as a surprise that in all the cases of this
kind, at least one party will call upon the courts to provide a definitive
interpretation of ‘criminal law’ as employed in item 4 of the Federal List.
In fact, Dato Malik Imtiaz, who is not only counsel in this case but was also
G counsel for the petitioner in Iki Putra, again seeks for us to adopt a particular
definition of ‘criminal law’ by applying cases in other jurisdictions.
[109] We repeat here what was said in Iki Putra that we must reject these
unrelenting invitations to apply a definition, what more foreign definitions,
to ‘criminal law’. As any person who can appreciate the gravity of these
H kinds of cases should recognise, the phrase ‘criminal law’ is simply far too
broad and nebulous to be accorded a set definition in the context of our FC
that can stand the test of time.
[110] While we cannot define ‘criminal law’, we can state our observations
on the implications that arise from that phrase. As was the case just now with
I
how we derived two broad categories of the phrase ‘precepts of Islam’, we
similarly derive two broad categories of ‘criminal law’ in item 4 of the
Federal List.
364 Current Law Journal [2024] 3 CLJ

[111] The first broad category of ‘criminal law’ refers to the power of A
Parliament to create and punish any offences with respect to any of the
entries included in the Federal List. As such, if the Federal List empowers
Parliament to make a law on any given subject matter, then the creation of
any offences or punishments in relation to that subject matter must be
deemed to be a part of ‘criminal law’. This is also made apparent by a direct B
reading of item 4(h) of the Federal List which provides:
4. Civil and criminal law and procedure and the administration of justice,
including:
...
C
(h) creation of offences in respect of any of the matters included in the
Federal List or dealt with by Federal Law; ...
[112] But, just as is similarly the case with the use of the phrase ‘precepts
of Islam’ in item 1 of the State List, item 4 of the Federal List also does not
expressly confine ‘criminal law’ to only matters included in the Federal List. D
What this means is that there is a whole entire second broad category of
criminal law that is incapable of a set definition either in substance or by
direct reference to the Federal List. For convenience, we shall call this
second broad category, which deals with all offences other than by direct
reference to the Federal List, as ‘general criminal law’.
E
[113] We are thus left with two legal phrases that are incapable of being
expressly defined. What they mean must be determined on a case-by-case
basis. We are here referring to the two indefinable phrases of ‘purely
religious offences’ that are on the one side, constituted within ‘precepts of
Islam’ in item 1 of the State List and on the other side, ‘general criminal law’ F
that is constituted in ‘criminal law’ in item 4 of the Federal List.
[114] The inability to define them however poses a problem because it is
only when we understand the two concepts can we determine if the
preclusion clause applies or not. And thus, to alleviate these problems, what
we suggest is to draw out their general characteristics. This is done by having G
regard to our earlier analysis that there is a central bias and that Parliament
holds the primary power to legislate on ‘criminal law’ to the exclusion of the
States. Similarly, except in the Federal Territories, the States enjoy the
power to create and punish ‘purely religious offences’ to the exclusion of
Parliament. H
[115] In this regard, because the limiting factor in item 1 of the State List
is the preclusion clause, we think this would be a useful starting point in
particular in understanding the broad characteristics of ‘general criminal
law’.
I
[116] Given the structure of our FC that leans in favour of secularity,
‘general criminal law’ includes any law that Parliament can enact to create
or punish offences the nature of which can apply to any person in Malaysia
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 365

A irrespective of their status, race or religion, and grounded upon the general
preservation of public order, health, safety, security, morality, etc. These
categories are not closed but what is common to them is the feature that they
are intended to apply to all persons or classes of persons equally, and are not
grounded on any notions of Islamic law.
B
[117] This then leaves us with ‘purely religious offences’. In light of what
has been determined above, what constitutes a ‘purely religious offence’
requires a two-step approach. The first step is to determine whether the State-
legislated offence in question is, in the first place, a ‘religious offence’.
Taking heed from the reasoning of Azahar Mohamed CJM in Iki Putra, and
C without closing any categories, the general characteristics of what can
constitute a ‘religious offence’ is one that might relate, among other things,
to (i) aqidah; (ii) sanctity of the Islamic religion and its institution; or
(iii) one purely relating to morality in Islam.
[118] The second and final step in that assessment requires the court to
D
determine if the ‘religious offence’ is a ‘purely religious offence’. This is
where the balancing exercise is done by comparing that ‘religious offence’ to
the general features of ‘general criminal law’.
[119] If the State-legislated offence is one that can apply only to Muslims,
E
enacted only for purposes of Islamic law or religious reasons, and confined
only to the religion of Islam relating to (i) aqidah; (ii) sanctity of the Islamic
religion and its institution; or (iii) one purely relating to morality in Islam,
then it is a ‘purely religious offence’ and is validly enacted by the State.
[120] If however, the State-legislated offence in question is a ‘religious
F offence’ but can, in pith and substance, be deemed as applying principles of
‘general criminal law’ which relates to overall public order, safety, health,
security, morality, etc, then it cannot be said to be a ‘purely religious offence’
and would be invalid by virtue of it having been caught by the preclusion
clause.
G [121] For convenience, we would summarise the principles alluded to
above, as follows:
(i) first, determine whether the impugned section legislated by the State
Legislature is an offence against the ‘precepts of Islam’, which
constitutionally refers to one of the two broad categories;
H
(ii) the first broad category relates to any matter specifically referenced in
item 1 of the State List and to other relevant provisions in the FC. If
the impugned section in pith and substance can be referenced to any of
item 1 or any other relevant provisions in FC, and the law is applicable
only to persons professing the religion of Islam, then it is a religious
I
offence and the law is validly enacted by the State Legislature as it
clearly falls under the State List;
366 Current Law Journal [2024] 3 CLJ

(iii) the second broad category covers a purely religious offence relating to A
(a) aqidah; (b) sanctity of the Islamic religion or its institutions; or
(c) one purely relating to morality in Islam;
(iv) if the impugned section is in pith and substance a purely religious
offence, the court must test the impugned section against the Federal
B
List. If the impugned section in pith and substance relates to a purely
religious offence which could not be referenced to the Federal List and
it concerns only the Muslims in this country, for example, someone
claims that he is a Prophet, then it is within the State Legislature’s power
to make it; and
C
(v) if it is a purely religious offence, but in pith and substance it falls under
matters of criminal law in the Federal List or general criminal law
which involves an element of public order, safety, health, security,
morality, etc, of general application, then it will be caught by the
preclusion clause. Examples of these offences are murder, theft,
D
robbery, and corruption which can be considered offences against the
precepts of Islam but in pith and substance it fall under the criminal law
of general application to everyone in this country.
[122] In applying the aforesaid principles, at all times the proposition
expounded by this court in Gin Poh Holdings Sdn Bhd v. The Government Of E
The State Of Penang & Ors [2018] 4 CLJ 1; [2018] 3 MLJ 417 must be kept
in mind in that when construing entries in any of the Lists (Federal, State or
Concurrent), the widest possible or widest conceivable interpretation must
be taken.
Constitutionality Of The Impugned Sections F
[123] With all the above principles in mind, we come now to the crux of
this petition – the constitutionality of the impugned sections. And we will
begin by quoting Suffian LP that “... Parliament and State Legislatures in
Malaysia is limited by the Constitution and they cannot make any law they
please.” (See Ah Thian v. Government Of Malaysia [1976] CLJU 3; [1976] G
1 LNS 3; [1976] 2 MLJ 112).
[124] We shall deal with the impugned sections (except ss. 5 and 37(1)(a)
which have been withdrawn), in the following portion of this judgment in
accordance with the principles as summarised in para. [121].
H
Section 11
[125] Section 11 states thus:
11 Destroying or defiling place of worship
(1) Any person who destroys, damages or litters any place of worship for I
Muslims or any of its equipments with intention to insult or degrade Islam
commits an offence and upon conviction shall be liable to a fine not
exceeding three thousand ringgit or to imprisonment for a term not
exceeding two years or to both.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 367

A (2) Any person who destroys, damages or litters any place of worship for
non-Muslims which is recognised by the law or any of its equipments with
intention to insult or degrade the religion of the non-Muslims commits
an offence and upon conviction shall be liable to a fine not exceeding
three thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
B
(3) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order for payment of reasonable compensation and any appropriate order.
[126] The operative portions of s. 11 are sub-ss. (1) and (2). The actus reus
C defined in those subsections relate to the destruction or defiling of, or
littering in, a place of worship of Muslims in sub-s. 11(1) and places of
worship of non-Muslims in sub-s. 11(2). The mens rea aspect of the section
appears to relate to an intention to insult or degrade Islam in sub-s. 11(1) and
likewise with non-Muslims in sub-s. 11(2).
D [127] We find in pith and substance that s. 11 deals with hate crime. This
is because upon considering the section as a whole, we find that it is a
religious offence enacted to punish acts that affect public order, and harmony
either among Muslims or among non-Muslims. This is apparent in both
sub-ss. 11(1) and 11(2) because the acts of destroying, defiling or littering,
E whether in places of worship for Muslims or non-Muslims, cannot be
established without proving either the intention to degrade or insult either
Islam or a non-Muslim religion.
[128] There is nothing in the submission of the respondent suggesting that
the offence in s. 11 can be referred to any of the entries in item 1 of the State
F List and the closest we can find such an entry, in relation to
sub-s. 11(1) is the entry that provides: ‘... mosques or any Islamic public
place of worship ...’.
[129] Giving ‘... mosques or any Islamic public place of worship ...’ its
widest possible construction, we find that this entry allows States to enact the
G establishment of mosques and other such public places of Islamic worship.
It is our view that establishing a place of worship for persons professing the
religion of Islam should also reasonably include creating offences or
punishing acts that seek to destroy, defile or litter in such places as part of
the ‘precepts of Islam’. The same cannot be said in respect of sub-s. 11(2)
H which deals with non-Muslim places of worship and thereby has no nexus
to any entry in item 1 of the State List.
[130] Having made these observations, it is our view that at least in relation
to sub-s. 11(1), when the provision is read in its own context and in light of
the rest of s. 11, sub-s. 11(1) has no nexus to item 1 of the State List even
I the entry on ‘... mosques or any Islamic public place of worship ...’ because
the aim of the section appears to be targeted at punishing hate crime.
Outwardly and at first glance, s. 11(1) appears to have a nexus to item 1 of
368 Current Law Journal [2024] 3 CLJ

the State List vis-à-vis the entry relating to “... mosques or any Islamic public A
place of worship ...”, but considered as a whole, and as stated earlier, we
think that in pith and substance, the purpose of the section is targeted more
at public order, harmony and safety than the per se intention of legislating on
“... mosques or any Islamic public place of worship ...”.
B
[131] In this regard, we proceed to determine if the preclusion clause is
engaged by reference to any of the two broad categories of ‘criminal law’ in
item 4 of the Federal List. We note that there is nothing generally in the
Federal List other than item 4 that can be said to deal with hate crime.
[132] We find that dealing with hate crime is a matter of ‘general criminal C
law’ within the second broad category of ‘criminal law’ in item 4. As such,
s. 11 as a whole cannot be deemed as a ‘purely religious offence’.
[133] Put another way, s. 11 is clearly a matter for Parliament having direct
nexus to the ‘criminal law’ purpose envisioned in item 4 of the Federal List.
[134] Section 11 is thus caught by the preclusion clause. We therefore find D
that the respondent had no power to make s. 11 and it is therefore
unconstitutional on that ground.
Section 13
[135] Section 13 provides thus: E

Selling or giving away child to non-Muslim or morally reprehensible

Muslim
13. (1) Any person who sells, gives or surrenders his child or children
under his custody to:
F
(a) any person who is not a Muslim; or
(b) any morally reprehensible Muslim,
commits an offence and upon conviction shall be liable to a fine not
exceeding five thousand ringgit or to imprisonment for a term not
exceeding three years or to whipping by six strokes or to any combination G
thereof.
(2) The court may make any order that it considers appropriate in respect
of the child or the children.
[136] The petitioners’ submission is that this provision is unconstitutional
H
because it deals with child welfare or social services. They also suggest that
human trafficking (including child trafficking) is an offence relating to a
subject matter which only Parliament can make laws.
[137] The petitioners suggest that the words “selling, giving or
surrendering” a child within someone’s custody which form the actus reus of I
the offence appear similar to matters of concern under the general criminal
law which remains under Parliament’s exclusive jurisdiction.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 369

A [138] With respect, we are not convinced that the petitioners are correct.
This is because, we find that in pith and substance, s. 13 deals with the
creation and punishment of offences relating to the custody of children. Upon
a closer and more wholesome analysis of the section, its purpose does not
appear to be targeted at curbing child trafficking or child welfare for that
B matter. It deals instead with the religious offence against a person professing
the religion of Islam, removing a child in his custody and giving him
specifically to either a non-Muslim or a Muslim of morally reprehensible
character (whatever the interpretation of that phrase may be).
[139] We are convinced that the pith and substance of s. 13 deals with the
C creation of offences and punishment of such offences against the subject of
the custody of Muslim children which can reasonably be construed as being
included in the entry of ‘... Islamic law and personal and family law of
persons professing the religion of Islam ...’ in item 1 of the State List.
[140] In other words, under item 1 of the State List, the States have the
D
power to legislate on Islamic law including personal law and family law of
persons professing the religion of Islam. We view the power to criminalise
an act of unlawful departure from custody as an adjunct to this power to make
custody orders and to decide generally on custody arrangements. In this
regard, it is not entirely correct for the petitioners to say that child welfare
E as a subject is itself a matter only for Parliament or in the concurrent list.
[141] We find that s. 13 as a provision is specific in that it criminalises a
Muslim person from parting with a child in his or her custody in the actus
reus described in s. 13 by delivering that child to either a non-Muslim or a
morally reprehensible Muslim. The respondent via the LSK has determined
F
that part of the precepts of Islam and Islamic family on custody is that a
Muslim child cannot be given to a morally reprehensible Muslim or a
non-Muslim.
[142] While Parliament can make general laws to protect the welfare of
children, we find that the basis of s. 13 is on the grounds of religion. The
G
purpose of s. 13 is in pith and substance, to prevent the propagation of faiths
other than Islam (including the improper practices of Islam) to Muslim
children. This the States have power over, not only by virtue of item 1 of
the State List but also by virtue of art. 11(4).

H [143] Given the above situation, we agree with the respondent that they had
the power to make s. 13. We therefore hold that s. 13 is not unconstitutional.
[144] For the sake of clarity, our finding on s. 13 does not in any way affect
the issue of custody of children of non-Muslim marriage, who have been
unilaterally converted by one parent without the consent of the other.
I
370 Current Law Journal [2024] 3 CLJ

Sections 14, 16, 17 And 47 A

[145] Sections 14, 16, 17, and 47 can be dealt with together as they relate
to the same larger subject matter – sexual offences.
[146] This is what s. 14 provides:
Sodomy B

14. (1) Any man who commits an act of sodomy which is not liable to the
punishment of hadd according to hukum syarak commits an offence and
upon conviction shall be liable to a fine not exceeding five thousand
ringgit and to imprisonment for a term not exceeding three years and to
whipping not exceeding six strokes. C
(2) Any man who attempts to commit an act of sodomy commits an
offence and upon conviction shall be liable to a fine not exceeding five
thousand ringgit or to imprisonment for a term not exceeding three years
or to whipping not exceeding six strokes or to any combination thereof.
(3) For the purpose of this section, “sodomy” means sexual intercourse D
performed unnaturally which is through the anus between a man with
someone else.
(4) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order. E
[147] Section 16 reads thus:
Sexual intercourse with corpse
16. (1) Any person who performs sexual intercourse with a corpse commits
an offence and upon conviction shall be liable to a fine not exceeding F
three thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
(2) Any person who attempts to perform sexual intercourse with a corpse
commits an offence and upon conviction shall be liable to a fine not
exceeding three thousand ringgit or to imprisonment for a term not
G
exceeding two years or to both.
(3) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[148] Finally, s. 17 says this: H
Sexual intercourse with non-human
17. (1) Any person who performs sexual intercourse with a non-human
commits an offence and upon conviction shall be liable to a fine not
exceeding three thousand ringgit or to imprisonment for a term not
exceeding two years or to both. I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 371

A (2) Any person who attempts to perform sexual intercourse with a non-
human commits an offence and upon conviction shall be liable to a fine
not exceeding three thousand ringgit or to imprisonment for a term not
exceeding two years or to both.
(3) If the court has convicted any person of the offence, the court, if it
B is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[149] It is our view that all three of the above provisions are caught squarely
by the decision of this court in Iki Putra. Section 14 deals, in pith and
substance with sexual intercourse against the order of nature. Section 17 too,
C as vague as it is, appears to carry with it features of offences that include
buggery with an animal. As for s. 16, it deals with necrophilia.
[150] As was stated in Iki Putra, these offences are caught by the preclusion
clause to item 1 of the State List meaning that they are matters of general
‘criminal law’ upon which only Parliament can legislate.
D
[151] Inasmuch as these religious offences do seem to relate to the second
broader meaning of ‘precepts of Islam’, these offences, if enacted into law,
can apply equally to non-Muslims as they can to Muslims. That being the
case, we are fortified in our opinion that these are not purely religious
offences such that the States, including the respondent, can legislate on.
E
[152] Accordingly, we find that the respondent had no power to make ss. 14,
16, and 17 and they are accordingly unconstitutional.
[153] While ss. 14, 16 and 17 are housed in Part III which deals with takzir
offences relating to the protection of person and dignity, s. 47 falls within
F Part VI which deals with takzir offences relating to the protection of
offspring. Since s. 47 deals with a direct sexual offence in the same way
suggested in ss. 14, 16 and 17, we think this is the right place in this judgment
to deal with s. 47.
[154] Section 47 reads as follows:
G
Act of incest
47. (1) Any person who performs an act of incest which is not liable to
the punishment of hadd according to hukum syarak commits an offence
and upon conviction shall be liable to a fine not exceeding five thousand
ringgit and to imprisonment for a term not exceeding three years and to
H
whipping not more than six strokes.
(2) Any person who attempts to commit an act of incest which is not liable
to the punishment of hadd according to hukum syarak commits an
offence and upon conviction shall be liable to a fine not exceeding five
thousand ringgit or to imprisonment for a term not exceeding three years
I or to whipping not exceeding six strokes or to any combination thereof.
(3) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
372 Current Law Journal [2024] 3 CLJ

[155] Section 2(1) defines “incest” as follows: A

(1) In this Act, unless the context otherwise requires:

“incest” means sexual intercourse between man and woman who are
prohibited from marrying each other under hukum syarak;
[156] For the reasons stated earlier regarding ss. 14, 16 and 17, and upon B
the direct application of Iki Putra, it is our view that incest is a general
offence which is a matter that ought to be dealt with by Federal law as
‘criminal law’ in item 4 of the Federal List. It is an offence that affects not
just Muslims, even if it is an offence against the precepts of Islam in its
second broad category. As such, s. 47 is caught by the preclusion clause. C
[157] Hence, we conclude, for the same reasons as we do on ss. 14, 16 and
17, that s. 47 is unconstitutional on the grounds that the respondent had no
power to make it.
Section 30
D
[158] Section 30 provides as follows:
Words capable of breaking peace
30. Any person who wilfully utters or disseminates words contrary to
hukum syarak and likely to cause breach of peace in any place commits
an offence and upon conviction shall be liable to a fine not exceeding E
three thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
[159] The petitioners submit that s. 30, which deals with the wilful uttering
or dissemination of words that are likely to cause a breach of peace are
matters which relate to public order and accordingly, fall within the ambit F
of Parliament’s power to legislate on ‘criminal law’. The argument adopted
in this regard is similar to the ones raised against s. 11.
[160] Having dealt with s. 11 earlier, we tend to agree with the petitioners
that if s. 30 deals, in pith and substance, with public order or security, then
G
the section would very clearly be dealing with a subject matter that is within
Parliament’s exclusive jurisdiction. Whether this is the case merits a proper
analysis of the provision in its pith and substance.
[161] Do the words ‘likely to cause breach of peace in any place’ connote
the implication that the purpose of the section is to deal with public order H
and security? In our view, that phrase can be read down in light of the
preceding phrase which stipulates: ‘[a]ny person who wilfully utters or
disseminates words contrary to hukum syarak ...’. The fact that this reading
down is possible is because both phrases are conjoined by the word ‘and’.
In other words, the operative part of s. 30 is that a person must have wilfully
I
uttered or disseminated words that are contrary to hukum syarak.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 373

A [162] The preservation of hukum syarak is a matter which falls squarely

within the scope of the State Legislatures. One of the central tenets of our
FC has been the control and restriction of the propagation of any faith other
than Islam to Muslims. This is borne out by art. 11(4) and even the portion
of item 1 of the State List, which states in relevant part:
B ... the control of propagating doctrines and beliefs among persons
professing the religion of Islam; ...
[163] Thus, this section deals in pith and substance with the first broad
category of ‘precepts of Islam’ which can be referenced to art. 11(4) which
in turn deals with the power of the States to make laws against propagation
C
of religions other than Islam to Muslims. This includes the propagation of
any views contrary to accepted interpretations of Islam contrary to the
accepted tenets of hukum syarak in Malaysia. An example of this would be
the case of Maqsood Ahmad (supra) which noted the restriction of the
propagation to Muslims of the Ahmadi belief (a State-declared deviant sect
D of Muslims). This is also apparent in the enactments of virtually all the States
requiring that only someone with a tauliah may preach on the religion of
Islam.
[164] Viewed in this way, we agree with the respondent to the extent that
there is a difference, not so much in wording, but on substance between
E
s. 30 and the general idea of preservation of public order which is a matter
for Parliament.
[165] In our view, s. 30 does not per se deal with the preservation of peace
or religious harmony which is a matter of general criminal nature. Rather,
F
it is a purely religious offence enacted with a view to restricting the
propagation of false doctrines and teachings by persons professing the
religion of Islam to others professing the same faith.
[166] While the section does use the phrase ‘and is likely to cause breach
of peace’, we have to presume that the LSK enacted the section in this way
G so as to be able to select between cases where someone merely wilfully utters
or disseminates words simpliciter or out of ignorance on the one hand, and
one that breaches restrictions on propagation of faith with the calculated
intent of breaching the peace.
[167] In this vein, the difference between ss. 11 and 30 though seemingly
H subtle, is clear. The issue with s. 11 is that it is in pith and substance a
provision dealing with hate crime which in turn is a matter for Parliament
to legislate, as explained. The other major difference is that the destruction
or defiling of or littering in any place much more so a place of worship
(whether for Muslims or non-Muslims) is a matter which carries a ‘general
I criminal law’ connotation. When s. 11 is read in the entirety of its context,
it is clear that the mens rea requirements of degrading or insulting Islam or
374 Current Law Journal [2024] 3 CLJ

a non-Muslim religion is inseparable from the acts of destruction, defiling or A

littering which bolsters the inference that s. 11 on a whole, is meant to cater
to hate crimes.
[168] In contrast, s. 30 when read in its context suggests that the provision’s
primary focus is the wilful uttering or dissemination of words which itself
B
accords with art. 11(4). The additional requirement of “breach of peace”
itself (though a general criminal law matter) merely waters down the
application of the first part of s. 30.
[169] We find that s. 30 has, in pith and substance, been validly enacted by
virtue of item 1 of the State List and/or art. 11(4) and it is not caught by the C
preclusion clause to item 1 of the State List. Section 30 is not
unconstitutional.
[170] For completeness, in addition to items 3 and 4 of the Federal List that
do not apply, the petitioners suggest that s. 30 conflicts with item 22 of the
Federal List on censorship. With respect, we disagree because as has been D
observed, s. 30 can be justified on the basis of propagation under art. 11(4).
Section 31
[171] Section 31 provides as follows:
Sexual harassment E
31. Any person who sexually harasses a non-mahram person at any place
with an act or word that can degrade the dignity of such person, that
person commits an offence and upon conviction shall be liable to a fine
not exceeding one thousand ringgit or to imprisonment for a term not
exceeding six months or to both. F
[172] It is patently obvious that s. 31, in pith and substance, seeks to
penalise the offence of sexual harassment. The pith and substance of it is clear
irrespective of whether the commission of it is limited to a non-mahram or
not.
[173] We can accept that sexual harassment per se could fall within the ambit G
of the precepts of Islam in its second broad category as we cannot find any
permissible entry in item 1 of the State List or anywhere else in the FC for
the first broad category of precepts of Islam to apply.
[174] There is similarly no applicable entry in the Federal List other than
H
item 4 of the Federal List to suggest that the preclusion clause applies on this
ground.
[175] We find that sexual harassment cannot be classified as a ‘purely
religious offence’ given its general character as a criminal offence that is
capable of general application in this country. It is quite clear that s. 31 falls, I
in pith and substance, within the general category of ‘criminal law’ as
employed in item 4 of the Federal List, and is caught by the preclusion clause
of item 1 of the State List.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 375

A [176] In the circumstances, we find and hold that the LSK and by extension
the respondent had no power to make s. 31 and it is therefore
unconstitutional on that ground.
Section 34
B [177] This is what s. 34 says:
Possessing false document, giving false evidence, information or
statement
34. (1) Any person who has in possession false document, gives false
information or falsifies evidence for the purpose of being used in any
C stage of court proceedings commits an offence and upon conviction shall
be liable to a fine not exceeding three thousand ringgit or to imprisonment
for a term not exceeding two years or to both.
(2) Any person who knows or has reason to believe that an offence has
been committed under this Enactment or under any written law relating
D to the religion of Islam, has in possession documents or provides any
information relating to the offence which he knows or believes to be false
commits an offence and upon conviction shall be liable to a fine not
exceeding three thousand ringgit or to imprisonment for a term not
exceeding two years or to both.

E
[178] Section 34 deals with the possession and giving of false documents or
information or aiding in such falsification of such documents or information
and in pith and substance, deals with the obstruction of justice, perjury and
false evidence specifically in relation to proceedings before the Syariah
courts (see definition of “court” in s. 2(1)).
F [179] Further, under item 1 of the State List, the States are empowered to
establish Syariah courts and make laws in relation to such courts by virtue
of the following entry in item 1 of the State List:
... the constitution, organization and procedure of Syariah courts, which
shall have jurisdiction only over persons professing the religion of Islam
G and in respect only of any of the matters included in this paragraph, but
shall not have jurisdiction in respect of offences except in so far as
conferred by Federal Law; ...
[180] Item 1 of the State List creates the categories in which the States may
enact laws and even create or punish offences against the precepts of Islam.
H However, the matters over which the Syariah courts can have substantive
jurisdiction is ‘in respect only of any of the matters included in this
paragraph’ that is to say only in respect of item 1 of the State List. And thus,
there is no merit to the argument that the respondent can enact s. 34 on the
basis of it having to do with the ‘constitution, organisation and procedure of
Syariah courts’ because in order to punish the offences in s. 34, the pith and
I
substance of perjury and obstruction of justice must refer back to item 1 of
the State List either in the first or second broad category of those subject
matters.
376 Current Law Journal [2024] 3 CLJ

[181] There is no referable entry in item 1 of the State List to suggest that A
independently of the entry ‘the constitution, organisation and procedure of
Syariah courts’, there is any other entry that can justify the making of laws
relating to perjury, false evidence or obstruction of justice.
[182] On the other hand, the Federal List does contemplate the act of
B
obstruction of justice, perjury and false evidence as a specifically identifiable
field of offences in the following words in item 4(e)(i) of the Federal List:
4. Civil and criminal law and procedure and the administration of justice,
including:
... C
(e) subject to paragraph (ii), the following:
(i) … the law of evidence; ...
[183] By s. 34, the LSK created an offence with respect to which the Federal
List already has demarcated for Parliament by virtue of the above entry in D
item 4(e)(i) of the Federal List. It is therefore our view that s. 34 is caught
by the preclusion clause.
[184] For that reason, we agree with the petitioner that the respondent had
no power to make s. 34 and it is thus unconstitutional on that ground.
E
Section 36
[185] Section 36 is worded as follows:
Anything intoxicating
36. (1) Any person who uses any intoxicating substance commits an
F
offence and upon conviction shall be liable to a fine not exceeding five
thousand ringgit or to imprisonment for a term not exceeding three years
or to whipping not exceeding six strokes.
(2) Any person who causes another person to use or attempt to use any
intoxicating substance commits an offence and upon conviction shall be
liable to a fine not exceeding five thousand ringgit or to imprisonment for G
a term not exceeding three years or to whipping not exceeding six strokes
or to any combination thereof.
(3) For the purposes of this section, “uses” includes eats, chews, sucks,
swallows, drinks, inhales, smells or inserts such substance into the body
by any means whatsoever or by using any tool whatsoever. H
(4) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[186] In order to determine whether s. 36 is constitutionally valid, we must
first understand what the section exactly entails. From our analysis of it, the I
words ‘intoxicating substance’ are not defined anywhere in the section or
Enactment 2019.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 377

A [187] To gain some indication of its meaning, we refer to s. 35 which is not

under challenge and it provides:
Intoxicating drinks
35. (1) Any person who, in any opened or closed place, drinks any
intoxicating drink which is not liable to the punishment of hadd according
B
to hukum syarak or attempt to drink it commits an offence and upon
conviction shall be liable to a fine not exceeding five thousand ringgit or
to imprisonment for a term not exceeding three years and to whipping not
exceeding six strokes.
(2) Any person who causes someone else to attempt to drink any
C intoxicating drink commits an offence and upon conviction shall be liable
to a fine not exceeding five thousand ringgit or to imprisonment for a
term not exceeding three years or to whipping not exceeding six strokes
or to any combination thereof.
(3) Any person who makes, sells, offers or exhibits for sale, keeps or buys
D or has in his possession or manufactures, imports, exports, stores,
conceals, buys, sells, gives, receives, stocks, handles, transports, carries,
delivers, sends, obtains, supplies, distributes, controls or maintains any
intoxicating drink commits an offence and upon conviction shall be liable
to a fine not exceeding five thousand ringgit or to imprisonment for a
term not exceeding three years or to both.
E
(4) For the purposes of this section, “drink” includes when a person is
tested positive in intoxication detection.
(5) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
F
[188] Given that s. 35 deals specifically with ‘intoxicating drinks’, it stands
to reason (applying general cannons of statutory construction) that ‘anything
intoxicating’ or ‘intoxicating substance’ in s. 36 means anything intoxicating
other than intoxicating drinks dealt with by s. 35. But even with that
distinction, it is clear that s. 36 is too vague in language for us to demarcate
G
a clear enough parameter within which it can be deemed to operate.
[189] As there is hardly any form of definition in s. 36, we think the breadth
of what can fall within the definition of ‘anything intoxicating’ is endless.
What we can conclude, after attempting to limit the scope of s. 36 is that its
H intent is to criminalise and punish the consumption of virtually anything
intoxicating, by Muslims.
[190] In this regard, we determine whether the provision can be considered
as dealing with ‘the precepts of Islam’. There is no referable entry in
item 1 of the State List that we can find or that we have been referred to.
I We now have to consider whether the preclusion clause applies.
378 Current Law Journal [2024] 3 CLJ

[191] We ask ourselves whether the criminalisation of ‘anything A

intoxicating’ or ‘intoxicating substances’ carries any element of ‘criminal
law’ in item 4 of the Federal List by reference to any of the other items in
the Federal List. In this regard, we observe that item 14 of the Federal List,
in particular paras. (c) and (d), provide thus:
14. Medicine and health including sanitation in the federal capital, and B
including:
...
(c) poisons and dangerous drugs; and
(d) intoxicating drugs and liquors; manufacture and sale of drugs. C

[192] Reading the entry ‘intoxicating drugs and liquors’ in item 14(d) with
the rest of the phrases quoted above, it is apparent that in general, it is within
Parliament’s purview to enact laws that deal with such matters including the
passing of laws that create and punish offences in relation to them.
D
[193] Having considered the pith and substance of s. 36, and the fact that it
is too broad to be read down, we find that s. 36 deals, in pith and substance
with matters included in item 14 of the Federal List read with item 4 of the
Federal List. Hence, we find that s. 36 is caught by the preclusion clause.
[194] It follows that the respondent had no power to make s. 36 and it is E
unconstitutional on that ground.
Section 37
[195] Section 37 stipulates thus:
Gambling F

37. (1) Any person who:

(a) gambles or found to be in a gambling place, whether he gambles or
not; or
(b) organizes, provides place or permits any gambling activity in any G
premises under his possession or control, commits an offence and
upon conviction shall be liable to a fine not exceeding three
thousand ringgit or to imprisonment for a term not exceeding two
years or to both.
(2) In this section, “gamble” includes any game or competition in which
H
a bet is placed.
(3) In this section, “gambling place” means any premise, including room,
office or stall, or any opened or closed place, which is used or kept for
the purpose of any game which its decision is based on luck or a
combination of skill and luck whether permitted by any other law or
otherwise for obtaining money or value of money. I

(4) The court may order any device, item or thing used in the commission
of or related to the offence mentioned in subsection (1) to be forfeited
and destroyed, albeit no one is convicted of the offence.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 379

A (5) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[196] Section 37 deals with two different offences that relate to gambling, as
can be gleaned from paras. (a) and (b) of sub-s. (1). Paragraph 37(1)(a) deals
B with the act of engaging in gambling and the petitioners have withdrawn their
challenge against this paragraph. We therefore make no comment on the
validity of this paragraph. That only leaves us with the question on
para. 37(1)(b).
[197] While we make no comment on para. 37(1)(a), we do nonetheless refer
C to it to understand para. 37(1)(b). In our view, para. 37(1)(b) deals, in
contrast to para. 37(1)(a), with the situation of organising gambling activity
within a place in the person’s possession or control, or providing a place or
permitting such activity in such premises. It is distinct from para. 37(1)(a)
in that this paragraph deals distinctly with the act of engaging in gambling
D irrespective of whether the place of gambling is a lawful gaming house and
also irrespective of whether the game itself is lawful.
[198] We take notice that in most jurisdictions, including Malaysia,
gambling is a regulated leisure activity. It is considered a vice and can
certainly fall within the banner of something against the precepts of Islam
E within its second broad category as there is no clear referable entry in
item 1 of the State List. This necessitates asking the question of whether the
preclusion clause applies.
[199] What we must ask is if there is any item or entry in the Federal List
against which Parliament can enact laws for the purposes of criminalising or
F
punishing offences in relation to those items or entries.
[200] As submitted by the petitioners, betting and lotteries is a subject
matter under the Federal List which is clearly spelt out by item 4(l) of the
Federal List which states:
G 4. Civil and criminal law and procedure and the administration of justice,
including:
...
(l) betting and lotteries.
[201] We take the view that ‘betting and lotteries’ can clearly and
H
reasonably be taken to include gambling. The organisation of gaming houses
and the regulation of betting and lotteries, as well as the creation of offences
and their punishments are within the jurisdiction of Parliament. We find that
s. 37(1)(b) purports to deal with a matter that is included in item 4(l) of the
Federal List which should be read together with the general header of
I item 4 on ‘criminal law’. The subject matter of s. 37(1)(b) is thus caught by
the preclusion clause.
380 Current Law Journal [2024] 3 CLJ

[202] We accordingly hold that s. 37(1)(b) is unconstitutional on the grounds A

that the respondent did not have the power to make it.
Section 39
[203] Section 39 stipulates:
Reducing scale, measurement and weight B

39. (1) Any person who scales, measures or weighs in any matter related
to property transaction and fraudulently makes a reduction in scale,
measurement or weight commits an offence and upon conviction shall be
liable to a fine not exceeding three thousand ringgit or to imprisonment
for a term not exceeding one year or to any combination thereof. C
(2) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[204] The petitioners submit that the subject matter of s. 39 in pith and
D
substance relates to item 8(f) of the Federal List which enumerates the
following field:
8. Trade, commerce and industry, including:
...
(f) establishment of standards of weights and measures; … E

[205] We agree the above would also attract item 4 of the Federal List in
relation to ‘criminal law’ because federally promulgated criminal legislation
includes offences in relation to any of the other matters enumerated in the
Federal List. It is our view that s. 39, even upon a simple reading, quite
F
clearly, in pith and substance, deals with matters that fall within the ambit
of item 8(f) of the Federal List.
[206] Given this line of reasoning, s. 39 is therefore caught by the preclusion
clause. For that reason, we find that s. 39 is unconstitutional on the ground
that the respondent had no power to make it. G
Sections 40 and 41
[207] We take the view that ss. 40 and 41 can be dealt with concurrently.
They generally relate to financing matters.
[208] Section 40 reads: H
Executing transactions contrary to hukum syarak
40. Any person who executes any transaction of:
(a) buying and selling;
(b) ijarah; I
(c) rahn;
(d) syarikah or musyarakah;
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 381

A (e) mudharabah;
(f) qardh;
(g) ju’alah;
(h) hiwalah;
(i) ‘ariyah or i’arah;
B
(j) wakalah;
(k) dhaman;
(l) hibah;
(m) will;
C (n) istisna’’;
(o) wadi’ah;
(p) luqatah;
(q) syuf’ah;
contrary to hukum syarak or any fatwa or any official decision of the
D Syariah Advisory Council of the Bank Negara Malaysia or the Syariah
Advisory Council of the Securities Commission of Malaysia or recognized
by written laws in force commits an offence and upon conviction shall be
liable to a fine not exceeding two thousand ringgit or to imprisonment for
a term not exceeding one year or to both and in the case of a continuing
offence, a further fine not exceeding one thousand ringgit or
E
imprisonment for period not exceeding six months or any appropriate
order or any combination thereof.
[209] Section 41 in turn reads:
Executing transactions via usury, etc.
F 41. Any person who executes any transaction of:
(a) usury;
(b) ghisy;
(c) gharar;
G (d) ghasb;
(e) illegal disposal of property;
(f) ihtikar;
contrary to hukum syarak or any fatwa or any official decision of the
Syariah Advisory Council of the Bank Negara Malaysia or the Syariah
H Advisory Council of the Securities Commission of Malaysia or recognized
by written laws in force commits an offence and upon conviction shall be
liable to a fine not exceeding five thousand ringgit or to imprisonment for
a term not exceeding three years or to both and in the case of a
continuing offence, a further fine not exceeding one thousand ringgit for
each day the offence continues or imprisonment for a term not exceeding
I one year and any appropriate order.
382 Current Law Journal [2024] 3 CLJ

[210] The petitioners submit that both ss. 40 and 41 pertain specifically to A
item 4(k) of the Federal List or generally to item 7 of the Federal List.
Item 4(k) states:
4. Civil and criminal law and procedure and the administration of justice,
including:
B
...
(k) ascertainment of Islamic law and other personal laws for purposes of
Federal Law; ...
[211] Item 7 provides quite extensively as follows:
C
7. Finance, including:
(a) currency, legal tender and coinage;
(b) national savings and savings banks;
(c) borrowing on the security of the Federal Consolidated Fund;
(d) loans to or borrowing by the States, public authorities and private D
enterprise;
(e) public debt of the Federation;
(f) financial and accounting procedure, including procedure for the
collection, custody and payment of the public moneys of the
Federation and of the States, and the purchase, custody and E
disposal of public property other than land of the Federation and
of the States;
(g) audit and accounts of the Federation and the States and other
public authorities;
(h) taxes; rates in the federal capital;
F
(i) fees in respect of any of the matters in the Federal List or dealt with
by Federal Law;
(j) banking; money-lending; pawnbrokers; control of credit;
(k) bills of exchange, cheques, promissory notes and other similar
instruments;
G
(l) foreign exchange; and
(m) capital issues; stock and commodity exchanges.
[212] The petitioners’ submission is that because banking and financing
matters appear to be governed solely by Federal law, the States cannot enact
laws on the same matter. More specifically on the subject of Islamic banking H
and Islamic law, item 4(k) specifically empowers Parliament, via Federal
law, to ascertain Islamic and other personal law for the purposes of Federal
law. We agree with this submission.
[213] Islamic banking is a matter which relates strictly to finance and is
caught by item 7 of the Federal List. For purposes of ascertaining principles I
of Islamic banking and for ensuring uniformity and congruity in this field,
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 383

A item 4(k) specifically empowers Parliament to ascertain Islamic law and

other personal laws for use in Federal laws. The Federal Law in this regard
and with respect to item 4(k) would be Islamic finance laws and regulations.
[214] The scope of item 4(k) of the Federal List differs from item 1 of the
State List. The former allows for the ascertainment of Islamic law principles
B
for the creation of federally legislated matters such as Islamic banking and
finance. The latter relates to the enactment of laws that actually concern
personal law and are matters which only the States can enact.
[215] We find that ss. 40 and 41 quite patently deal with matters that fall
C
within items 4(k) and 7 of the Federal List. It must also be read with
item 4 of the Federal List, generally specifically, the words ‘criminal law’
because the making of ‘criminal law’ can be referenced to other entries in the
Federal List, which in this case would be items 4(k) and 7 read together.
[216] Even if ss. 40 and 41 deal with offences which relate to the precepts
D of Islam in any of its two broad categories, the States are nevertheless
precluded from legislating such laws by virtue of the preclusion clause to
item 1 of the State List.
[217] For the above reasons, we accept that both in outward form as well
as in pith and substance, ss. 40 and 41 are laws the subject matter of which
E deals with matters with respect of which only Parliament can make. We
accordingly find that ss. 40 and 41 are unconstitutional because the
respondent had no power to make them.
Section 42

F [218] Section 42 reads as follows:

Abuse of halal label and connotation
42. (1) Any person who displays any form of halal label on non-halal food,
drink, goods or service for the purpose of deceiving or misleading Muslims
that such food, drink, goods or service is halal commits an offence and
G upon conviction shall be liable to a fine not exceeding five thousand
ringgit or to imprisonment for a term not exceeding three years or to both.
(2) For the purposes of this section, “any person” includes any Muslim
who at the time the offence is committed is the director, manager or
secretary of the company or otherwise responsible for the management of
H the company also commits the offence unless he proves that:
(a) the offence is committed by the company without his consent or
connivance; or
(b) he has taken all reasonable effort to prevent the occurrence of the
offence as he ought to have exercised having regard to the nature
I of his office or of his duties in the company and all the
circumstances.
384 Current Law Journal [2024] 3 CLJ

[219] The petitioners submit that s. 42 is unconstitutional because in pith A

and substance it pertains to matters which fall within item 8 of the Federal
List read with item 4 of the Federal law on ‘criminal law’. Item 8 provides,
in relevant part:
8. Trade, commerce and industry, including:
B
(n) production, supply and distribution of goods; price control and food
control; adulteration of foodstuffs and other goods;
...
(e) patents; designs, inventions; trade marks and mercantile marks;
copyrights; C

[220] Item 8 of the Federal List makes it clear, especially from the above
entry that food control, which when interpreted broadly and including the
phrase that appears after it in ‘adulteration of foodstuffs and other goods’,
would include food standards and safety. Accordingly, reading item 8 of the
Federal List with item 4 of the same, any offence that can capture the essence D
of item 8 would also include Parliament’s power to legislate on ‘criminal
law’. These entries must also be read in light of item 4(k) of the Federal List
which, as explained above, allows Parliament to ascertain Islamic law for
Federal Law purposes. In this regard, as food safety and adulteration of food
safety are matters for Parliament, the use and abuse of the halal logo would E
also constitute a matter included in the Federal List.
[221] We find that the pith and substance of s. 42 deals with matters that fall
within the Federal List specifically items 8 and 4.
[222] Section 42 is thus caught by the preclusion clause to item 1 of the State F
List which means that the respondent had no power to make it. We therefore
hold that s. 42 is unconstitutional on that ground.
Sections 43, 44, 45 And 48
[223] In our analysis, ss. 43, 44, 45, and 48 can be dealt with together as
they principally deal with similar subject matter. G

[224] Section 43 reads:

Offering or providing vice services
43. (1) Any person who offers or provides vice services commits an offence
and upon conviction shall be liable to a fine of five thousand ringgit or H
to imprisonment for a term not exceeding three years or to whipping not
exceeding six strokes or to any combination thereof.
(2) Any person who does any act preparatory to:
(a) prostitute his wife or child or any person in his custody or care; or
I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 385

A (b) cause or permit the husband, wife or child or any person in the
custody or care to prostitute ownself, commits an offence and upon
conviction shall be liable to a fine not exceeding five thousand
ringgit or to imprisonment for a term not exceeding three years or
to whipping not exceeding six strokes or to any combination thereof.

B (3) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[225] Section 44 provides:
Preparatory act of offering or providing vice services
C
44. (1) Any person who performs any act in any way in preparation for
prostituting ownself or in preparation for offering vice services or
providing vice services for ownself commits an offence and upon
conviction shall be liable to a fine not exceeding five thousand ringgit or
to imprisonment for a term not exceeding three years or to whipping not
D exceeding six strokes or to any combination thereof.
(2) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[226] Section 45 reads:
E
Preparatory act of vice
45. (1) Any person who performs any act for preparation of committing
vice commits an offence and upon conviction shall be liable to a fine not
exceeding five thousand ringgit or to imprisonment for a term not
exceeding three years or to whipping not exceeding six strokes or to any
F combination thereof.
(2) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.

G [227] What the above sections have in common is the penalising of ‘vice’
in one form or another. Section 2(1) defines vice as follows:
(1) In this Act, unless the context otherwise requires:
“vice” for the purposes of Part VI, means vice matters containing sexual
element;
H
[228] Given the strict definition above, we find that the offences stated
above are strictly limited to vice relating to anything containing a sexual
element.

I
386 Current Law Journal [2024] 3 CLJ

[229] Finally, s. 48 reads as follows: A

Muncikari
48. (1) Any person who acts as a muncikari commits an offence and upon
conviction shall be liable to a fine not exceeding five thousand ringgit or
to imprisonment for a term not exceeding three years or to whipping not
B
exceeding six strokes or to any combination thereof.
(2) If the court has convicted any person of the offence, the court, if it
is satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.
[230] Section 2(1) defines “muncikari” as follows: C
(1) In this Act, unless the context otherwise requires:
“Muncikari” means a person who acts as an intermediary between a
woman and a man or between the same gender for any purpose infringing
Part VI of this Enactment;
D
[231] Section 43 deals with a situation where a person offers or provides
vice services. Subsection (2) deals specifically with a situation where a
husband provides or offers his child, wife or a person in his custody for vice
services. It also deals with a situation where anyone caused the
aforementioned persons to offer or provide such services.
E
[232] Section 44 effectively makes it an offence to attempt to offer vice
services. Section 45 on the other hand, from our interpretation of it, is
targeted at a person engaging in vice activities. In other words, while ss. 43
and 44 deal with the offer and provision of vice services, s. 45 deals with
persons who take up such vice services.
F
[233] Section 48, which deals with muncikari, relates to a situation where
a person acts as a middleman to enable another man or woman to engage in
vice activities with other men or women. This would include a situation
where one acts either as a procurer or procuress.
[234] The petitioners submit that ss. 43, 44, 45 and 48 deal with matters of G
general criminal law which fall within ‘criminal law’ in item 4 of the Federal
List. We can accept that each of these four provisions relate to criminal
offences that fall within the precepts of the religion of Islam not in the first
broad category (as we cannot ascertain a specific applicable entry in item 1)
but in the second broad category of it. H

[235] We move to determine if there is any specific Federal List entry that
can reasonably been interpreted to deal with vice services. In our assessment,
there is none.
[236] Hence, these conditions warrant considering whether ss. 43, 44, 45 I
and 48 can, in pith and substance, be deemed as ‘purely religious offences’
that cannot be included within the ambit of ‘general criminal law’ in the
second broad category of ‘criminal law’ in item 4 of the Federal List.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 387

A [237] It is our view that ss. 43, 44, 45 and 48 do in pith and substance,
collectively deal with the offence of solicitation of prostitution in one form,
shape or another. We take the view that prostitution is a general offence that
falls within Parliament’s purview to legislate upon under item 4 of the
Federal List. The solicitation of vice services and prostitution is a crime that
B affects not just persons professing the religion of Islam but any person in this
country. In that sense, it is not a ‘purely religious offence’ as it is a matter
of ‘general criminal law’ relating to public order, safety, health, morality, etc,
in a manner similar to the reasoning concerning ss. 14, 16, 17 and 47 above.
[238] We therefore find that ss. 43, 44, 45 and 48 are caught by the
C preclusion clause. Sections 43, 44, 45 and 48 are thus unconstitutional on the
ground that the respondent had no power to make them.
Conclusion
[239] We thank all the parties, amici curiae, and watching briefs that have
D made submissions on the legal issues that have arisen in this case. We have
read all these submissions and considered them in arriving at our
conclusions. In large part, the law in this area is very much settled upon in
the judgments of this court in Iki Putra and SIS Forum. We did not therefore
consider that there was much dispute in the interpretation and applicability
E
of the law in this area. Because it concerned more the application of law to
the facts of this case, we paid greater attention to the submissions of the
parties, namely the petitioners and the respondent.
[240] For the avoidance of doubt, we have not expressed any view on the
validity of ss. 5 and 37(1)(a) as the petitioners, in the course of oral argument
F withdrew their challenge against these provisions. Sections 5 and 37(1)(a)
should therefore continue to be presumed constitutional. Further, for reasons
stated in this judgment, we have found that the respondent did have the
power to make ss. 13 and 30. Sections 13 and 30 are therefore not
unconstitutional.
G [241] As for the rest of the impugned sections, and in terms of the sole
remedy that can be granted in this case, for the reasons contained in this
judgment, we hereby grant the following declaration:
Sections 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47
and 48 of the Kelantan Syariah Criminal Code (I) Enactment 2019
H [Enactment 14] are invalid on the ground that they make provision with
respect to matters with respect to which the Legislature of the State of
Kelantan has no power to make laws and the said provisions are
accordingly null and void by virtue of Clauses (1) and (3) of art. 4 of the
Federal Constitution.

I [242] There shall be no order as to costs in light of s. 83 of the Courts of

Judicature Act 1964.
388 Current Law Journal [2024] 3 CLJ

Abdul Rahman Sebli CJ (Sabah & Sarawak) (dissenting): A

[243] There are three applications before the court. Enclosure 26 is the
petition filed by the applicants, which is the main application. Enclosure 68
is an application by the respondent, the State Government of Kelantan, to
set aside the leave order granted by Vernon Ong FCJ sitting as a single judge
B
of the Federal Court on 30 September 2022 whilst encl. 90 is an application
by Jabatan Agama Islam Negeri Kelantan to intervene in the action.
[244] Enclosure 90 was dismissed on the first day of hearing itself on
17 August 2023 on the ground that there was no legal basis for the Jabatan
Agama Islam Kelantan to intervene. Therefore, there are only encl. 26 and C
encl. 68 left to be decided.
[245] With regard to encl. 68, the grounds for the application, as averred to
in the affidavit in support of the Kelantan State Legal Advisor Dato’ Idham
bin Hj Abdul Ghani affirmed on 2 August 2023 are, inter alia, as follows:
(i) the petitioners lack locus standi as they fail to show that there is an actual D
controversy affecting the rights and interests of the parties;
(ii) the petitioners are not facing any legal action or being charged in the
Kelantan Syariah Court under any of the impugned provisions;
(iii) the petitioners’ assertion that there is a real risk that they may be E
subjected to investigation by the first respondent is scandalous and
frivolous as the first respondent is not the authority to enforce the
criminal law in the State of Kelantan; and
(iv) the reasons given by the petitioners at the leave stage were purely
speculative, academic and abstract. F

[246] In the course of argument shortly after the commencement of hearing

on 17 August 2023, learned counsel for the Kelantan Government Dato’
Kamaruzaman bin Muhammad Arif asked that encl. 68 be heard first before
the court proceeded to hear the substantive merits of the application in
G
encl. 26. The request had also been made earlier in para. 15 of the affidavit
in support of the Kelantan State Legal Advisor dated 2 August 2023, ie, two
weeks before the hearing date.
[247] The court’s response was to indicate to counsel that encl. 68 would be
dealt with in the course of hearing the substantive application in encl. 26 and H
that counsel would be heard on the issue of locus standi when responding to
the applicants’ submissions on the merits of encl. 26. Learned counsel for the
Government of Kelantan raised no objection to this course of action. Parties,
including counsel on watching brief, then proceeded to submit on encl. 26
and encl. 68, both of which have now been concluded.
I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 389

A [248] If encl. 68 is allowed, encl. 26 will have to be struck out as a matter

of course because with the setting aside of the leave order granted by the
single judge of the Federal Court on 30 September 2022, there will be no
petition before the court, and with no petition before the court, the exercise
by this court of its exclusive original jurisdiction under art. 128(1)(a) of the
B Federal Constitution (“the Constitution”) will be an exercise in vacuo, ie, in
isolation without reference to facts or evidence. It is an untenable situation.
[249] In delivering his decision ex-tempore on 30 September 2022, the single
judge of the Federal Court Vernon Ong FCJ gave the following reasons for
granting leave under art. 4(4) of the Constitution:
C
I thank both the Applicants and Respondent counsel for the written
submissions that were filed beforehand and the oral submission before me
this morning. I had the benefit of reading and perusing the cause papers.
This application relates to certain provisions in the Kelantan Shariah
Criminal Code which the Applicants contend the legislature of the state
D of Kelantan did not have the power to make. It is in essence, a
competency challenge. Altogether 20 provisions in the state enactment are
said to be impugned on the ground that these are matters falling within
List 1 of the Federal List of the Ninth Schedule of the Federal
Constitution which are matters which clearly fall within Federal Law. The
learned Assistant State Legal Advisor has abandoned the first PO to the
E application relating to the omission to name the Majlis Agama Islam
Kelantan and the Jabatan Hal Ehwal Agama Islam Negeri Kelantan as
parties in this application. The main attack on the Applicants’ locus is
grounded on the fact that both Applicants are not affected by the
impugned provisions and that the First Applicant resided in Kuala
Lumpur outside the State of Kelantan. The learned State LA also
F distinguished the Federal Court decisions in Iki Putra and SIS and cited
the case of Gerakan challenge of the Hudud Laws in support of his
contention. However as pointed out by the learned Applicant Counsel,
the enactment in question applies here to any Muslims in Kelantan and
there is no requirement that the putative Muslim be a resident in the state
of Kelantan, it is territorial. Which is to say that any Muslim who happens
G to be in the state of Kelantan may be liable or subject to prosecution
under the impugned provisions of the said enactment. After considering
the argument raised and perusing the cause papers, I am of the opinion
that the Applicants have made out an arguable case which warrant the
granting of leave for the matter to be fully ventilated before the Federal
Court. Accordingly, I am granting leave to the Applicants. Order in terms
H
for prayer 1 and 2 of the motion.
[250] Notably, the learned judge did not deal with the issue of locus standi
in depth presumably because His Lordship was more concerned with the
merits of the case, which to his mind were to be ventilated at the full hearing
I
once leave had been granted.
390 Current Law Journal [2024] 3 CLJ

[251] The 20 provisions of the Kelantan Syariah Criminal Code (l) A

[Enactment 14] Enactment 2019 (“the Enactment”) that the applicants are
contending the State Legislature of Kelantan had no competency to enact are
the following sections:
(i) Section 5 – False claim;
B
(ii) Section 11 – Destroying or defiling places of worship;
(iii) Section 13 – Selling or giving away child to non-Muslim or morally
reprehensible Muslim;
(iv) Section 14 – Sodomy;
C
(v) Section 16 – Sexual intercourse with corpse;
(vi) Section 17 – Sexual intercourse with non-human;
(vii) Section 30 – Words capable of breaking peace;
(viii) Section 31 – Sexual harassment; D

(ix) Section 34 – Possessing false documents, giving false evidence,

information or statement;
(x) Section 36 – Anything intoxicating;
E
(xi) Section 37 – Gambling;
(xii) Section 39 – Reducing scale, measurement and weight;
(xiii) Section 40 – Executing transactions contrary to hukum syarak;
(xiv) Section 41 – Executing transactions via usury etc;
F
(xv) Section 42 – Abuse of halal label and connotation;
(xvi) Section 43 – Offering or providing vice services;
(xvii) Section 44 – Preparatory act of offering or providing vice services;
(xviii) Section 45 – Preparatory act of vice; G

(xix) Section 47 – Act of incest;

(xx) Section 48 – Muncikari.
[252] It is undoubtedly a constitutional challenge under art. 4 cl. (3) read
with cl. (4) of the Constitution. Clauses (3) and (4) are as follows: H

(3) The validity of any law made by Parliament or the Legislature of any
State shall not be questioned on the ground that it makes provision with
respect to any matter with respect to which Parliament or, as the case may
be, the Legislature of the State has no power to make laws, except in
proceedings for a declaration that the law is invalid on that ground or : I

(a) if the law is made by Parliament, in proceedings between the

Federation and one or more States;
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 391

A (b) if the law was made by the Legislature of a State, in proceedings

between the Federation and that State.
(4) Proceedings for a declaration that a law is invalid on the ground
mentioned in Clause (3) (not being proceedings falling within paragraph
(a) or (b) of the Clause) shall not be commenced without the leave of a
B judge of the Federal Court; and the Federation shall be entitled to be a
party to any such proceedings brought for the same purpose under
paragraph (a) or (b) of the Clause.
(emphasis added)
[253] Proceedings under paras. (a) and (b) of art. 4(3) are proceedings
C between the Federal and the State Governments and vice versa. No leave to
commence proceedings is required. Proceedings under art. 4(4) on the other
hand are proceedings commenced by petitioners other than proceedings
between the Federal and the State Governments and vice versa. Such
proceedings require the leave of a judge of the Federal Court.
D [254] The purport of art. 4(4) of the Constitution was explained by Hashim
Yeop A Sani SCJ (later CJM) in the then Supreme Court case of Abdul Karim
Abdul Ghani v. The Legislative Assembly Of The State Of Sabah [1988] 1 CLJ
460; [1988] 1 CLJ (Rep) 1; [1988] 1 MLJ 171 (“Karim Abdul Ghani”) in the
following terms:
E The object and purport of art. 4(4) of the Federal Constitution has already
been interpreted before in Stephen Kalong Ningkan v. Tun Abang Haji Openg
& Tawi Sli (No. 2) [1967] 1 MLJ 46, 49 by Pike C.J. (Borneo) with which
interpretation I agree. art. 4(3) and (4) of the Federal Constitution is
designed to prevent the possibility of the validity of laws made by the
legislature being questioned on the ground mentioned in that article
F incidentally. The article requires that such a law may only be questioned
in proceedings for a declaration that the law is invalid. The subject must
ask for a specific declaration of invalidity. In order to secure that frivolous
or vexatious proceedings for such declarations are not commenced,
art. 4(4) requires that leave of a judge of the Supreme Court must first
be obtained.
G
(emphasis added)
[255] To paraphrase Hashim Yeop A Sani SCJ, the reason why leave of a
Federal Court Judge is required for a constitutional challenge under art. 4(4)
of the Constitution is to preclude busybodies or dilettantes from commencing
H
frivolous or vexatious actions to challenge the validity of laws made by
Parliament or the State Legislature. The challenge must in all cases be
grounded on bona fide intention.
[256] Midway through the proceedings and after hearing submissions by
learned counsel for the Government of Kelantan, learned counsel for the
I petitioners informed the court that the petitioners wished to withdraw their
challenge to s. 5 (false claim) and s. 37(1)(a) (gambling) of the Enactment,
which the court took note of.
392 Current Law Journal [2024] 3 CLJ

[257] By withdrawing their challenge to s. 5 and s. 37(1)(a) of the A

Enactment, the petitioners are now effectively saying that the offences of
false claim (claiming to be a prophet or such other false claims) and gambling
are purely religious offences and not “criminal law” for the purposes of the
Constitution (item 1 of the State List) and therefore within the competency
of the State Legislature of Kelantan to enact. B

[258] It is unfortunate that the Constitution does not define the term
“criminal law” in order, if that had been the intention, to exclude from its
ambit Syariah offences which are purely religious in nature so as to confer
on the State Legislatures the power to enact such laws.
C
[259] The Britannica Encyclopedia defines “criminal law” to mean “the body
of law that defines criminal offences, regulates the apprehension, charging
and trial of suspected persons, and fixes penalties and modes of treatment
applicable to convicted offenders”. The definition is wide enough to exclude
any and all forms of Syariah criminal law from being within the power of
D
the State Legislatures to legislate on. It is therefore hard to understand why
the petitioners are now accepting that false claim (s. 5) and gambling (s.
37(1)(a)) are not “criminal law” for the purposes of the Constitution and
therefore within the competency of the Kelantan State Legislature to enact.
[260] In Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor [2021] 3 CLJ E
465 (“Iki Putra Mubarrak”), Azahar Mohamad CJ (Malaya) who delivered the
supporting judgment came to the following conclusion at para. [118]:
[118] Based on all the foregoing reasons, on this constitutional issue, I
conclude by saying that even though the impugned provision falls within
the precepts of Islam’s legislative field, the preclusion clause catches it.
F
The true character and substance of the impugned provision in reality
belongs to the subject matter of “criminal law”. The term “criminal law”
in the Federal List would include within it “offences against precepts of
religion of Islam” as assigned to the State Legislature. Put another way,
only Parliament has power to make such laws with respect to the offence
of sexual intercourse against the order of nature. G
[261] The petitioners relied on the following grounds as their legal basis for
challenging the validity of the impugned provisions:
(i) the impugned provisions are beyond the legislative competence of the
Kelantan Legislature;
H
(ii) item 1, List II (State List), Ninth Schedule of the Constitution allows
the Kelantan Legislature to make laws on “the creation and punishment
of offences by persons professing the religion of Islam against precepts
of that religion, except in regard to matters included in the Federal List”
(together with art. 74 of the Constitution); and I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 393

A (iii) the impugned provisions were made pursuant to this legislative field.
However, the impugned provisions concern matters in List I (Federal
List), Ninth Schedule of the Constitution (“Federal List”) and/or dealt
with by Federal Law. Most of them relate to “criminal law” under
item 4 in the Federal List, which includes all matters that could
B reasonably be viewed as a matter of public concern relating to peace,
order, security, morality, health, or some similar purpose, in the public
sphere.
[262] In her application for leave earlier, the first petitioner in her affidavit
in support dated 25 May 2022 affirmed as follows:
C
6. I was born in Kota Bharu, Kelantan in 1961;
6.1 I originally resided in Kelantan with my family until 1967.
6.2 I later moved back to Kelantan in 1989 to practice law in Kota Bharu
but commuted between Kuala Lumpur and Kota Bharu for work
D when required. At certain points, I practiced law in Kuala Lumpur
but remained a resident in Kelantan.
6.3 I set up my own legal practice in Kelantan in 1997. It was called
Messrs. Nik Elin Nik Rashid & Associates.
6.4 I later joined many other law firms as a partner but later quit practice
E sometime in 2009. I however continued to live in Kota Bharu.
6.5 In 2015, I moved to Kuala Lumpur and returned to legal practice
under the style of Messrs. Nik EZ Law Chambers (now known as
Messrs. Nik Elin Nik Rashid Law Practice).
6.6 Although I moved to Kuala Lumpur, I frequently travel to Kelantan
F as I still have family and properties and assets in Kelantan.
6.7 I frequently travel to Kelantan to manage the said properties and
assets, including having to pay the necessary taxes and charges.
6.8 With that, there is a real risk that I might be subjected to the
investigative powers of the respondent in relation to the impugned
G
Provisions.
6.9 I also intend to retire in Kelantan.
[263] Of the ten paragraphs, only para. 6.8 has anything to do with locus
standi. The rest have no relation to the issue as they apply to every Muslim,
H Kelantanese and non-Kelantanese alike and not specific to the petitioners.
[264] Having obtained leave from the single Federal Court Judge on
30 September 2022, the petitioners duly filed their petition (encl. 26) which
contained their statement made pursuant to r. 7 of the Rules of the Federal
Court 1995 (“the Rules”) which reads as follows:
I
The petition shall contain a statement in summary form of the material
facts on which the petitioner relies and shall conclude by setting out the
relief to which the petitioner considers he is entitled.
394 Current Law Journal [2024] 3 CLJ

[265] Under the heading “material facts” this is what the petitioners stated: A

4. The 1st Petitioner was born in Kota Bharu, Kelantan in 1961.

4.1 The 1st Petitioner originally resided in Kelantan with her family
until1967.
4.2 She later moved back to Kelantan in 1989 to practice law in Kota B
Bharu but commuted between Kuala Lumpur and Kota Bharu for
work when required. At certain points, the 1st Petitioner practiced
law in Kuala Lumpur but remained a resident in Kelantan.
4.3 The 1st Petitioner set up her own legal practice in Kelantan in 1997.
It was called Messrs. Nik Elin Nik Rashid & Associates. C
4.4 The 1st Petitioner later joined many other law firms as a partner but
later quit practice sometime in 2009. She however continued to live
in Kota Bharu.
4.5 In 2005, the 1st Petitioner moved to Kuala Lumpur and returned to
legal practice. The 1st Petitioner practiced under the style of Messrs. D
Nik EZ Law Chambers (now known as Messrs. Nik Elin Nik Rashid
Law Practice).
4.6 Although she moved to Kuala Lumpur, the 1st Petitioner frequently
travels to Kelantan as she still has family and properties and assets
in Kelantan.
E
4.7 The 1st Petitioner frequently travels to Kelantan to manage the said
properties and assets, including having to pay the necessary taxes
and charges.
4.8 The 1st Petitioner intends to retire in Kelantan.
4.9 The 2nd Petitioner is the 1st Petitioner’s daughter. She has a F
residential address in Kelantan and frequently travels to Kelantan
to visit her family.
[266] It was the same statement that the first petitioner made in her leave
application but conspicuously missing from the statutory statement is her
averment at para. 6.8 of her affidavit in support at the leave stage quoted G
earlier where she had affirmed:
6.8 With that, there is a real risk that I might be subjected to the
investigative powers of the Respondent in relation to the Impugned
Provisions.
H
[267] There is no explanation for the omission, which leaves the petitioners
without any factual basis to support their claim for locus standi or standing
to sue. Having gone through the cause papers and the submissions of the
parties both written and oral, I am constrained to hold that the application
in encl. 26 is an abuse of the court process and ought to be struck out. Leave
I
should not have been granted in the first place and must be set aside. It is
clear to me that the petitioners have no locus standi to maintain the action and
consequently this court has no basis in law to exercise its exclusive original
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 395

A jurisdiction under art. 128(1)(a) of the Constitution to hear and to decide on

the merits of encl. 26. The court cannot assume jurisdiction where there is
none.
[268] I take note of the majority view that if leave had been improperly
granted by the single Federal Court Judge, the striking out of the petition
B
would be a matter of “technicality”. I understand that to mean that if the
petition is struck out merely because the petitioners have no locus standi to
maintain the action, the striking out would be on an issue that is unimportant
compared to the larger issue of merits of the case.

C
[269] I am not prepared to completely disagree with that view, but with the
greatest of respect to the majority, technicality or not it is an abuse of the
court process for anyone with no locus standi to drag the Government,
Federal or State, to court to ventilate his or her personal grievances by
invoking art. 4(4) read with art. 128(1)(a) of the Constitution. A technical
knockout is still a knockout.
D
[270] An abuse of process occurs when a person or party uses the legal
system in a way that does not serve the underlying goal of a legal action but
to achieve a collateral purpose. Such abuse of the court process at any level
of the court hierarchy is unacceptable and must not be countenanced by this
E
court. Condoning the abuse will render the rule on locus standi completely
redundant and bereft of all meaning. It will be as good as tossing the rule
aside in order to give way to the merits of the case.
[271] Locus standi is Latin for “place to stand”. Black’s Law Dictionary
(Deluxe Ninth Edition) defines it to mean “the right to bring an action or
F to be heard in a given forum”. It determines whether a party has sufficient
interest or stake in the matter to justify his participation in the proceedings.
There can be no right to bring an action or to be heard in a given forum where
there is no standing to sue. A person with no standing to sue is an
incompetent litigant.
G [272] The doctrine of locus standi signifies that unless a person has been
directly injured or is adversely affected by the act he is challenging, his action
will not be upheld by the court. He must at least show that he has a real and
genuine interest in the subject matter of the suit although it is not necessary
to establish infringement of a private right or the suffering of special damage:
H see: Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air Dan
Komunikasi & Anor [2014] 2 CLJ 525 (“MTUC & Ors”) where it was held by
this court that the “adversely affected test” is the preferable test for all the
remedies provided for under O. 53 of the ROC.
[273] It is a fundamental requirement for instituting a suit that the person
I must suffer some kind of injury. In Shanti Kumar R Canji v. Home Insurance
Co of New York [1974] AIR 1719, the Supreme Court of India observed that
the term “aggrieved person” does not mean a person who has suffered an
396 Current Law Journal [2024] 3 CLJ

imaginary injury but it means that the rights of the person have been violated A
adversely in reality, and the injury, must be physical, mental, monetary,
et cetera and not mere imagination.
[274] It must be highlighted however that the trend in India today is to reject
the restrictive application of the locus standi rule in favour of liberalising it
B
through judicial activism for the reason that the strict application of the rule
limits the role played by public spirited individuals, non-governmental
organisations (NGO) and human rights activists and advocates in litigating
socio-economic matters that affect the poor, thereby denying them access to
justice. This is reflected in the decision of the Indian Supreme Court in Janta
Dal v. HS Chawdhary [1992] Supp 1 SCR 226 at paras. 95-96 where the court C
articulated the rule on locus standi as follows:
If such person or determinate class of persons is by reason of poverty,
helplessness or disability or [sic] or socially or economically disadvantaged
position, are unable to approach the court for relief, any member of the
public can maintain an application for an appropriate direction, order or D
writ ... seeking judicial redress for the legal wrong or injury.
[275] Taking Nigeria as another random example, the country maintains the
strict approach. In AG Fed v. AG Lagos State [2017] 8 NWLR (PT1566) 20
at 55 para. D, the Supreme Court of Nigeria held that the question whether
a plaintiff has locus standi to bring an action in the first place raises an issue E
of jurisdiction. In Liba v. Koko [2017] 11 NWLR (PT1576) 335 at 355 to 356
paras. H to C, the same court held that when the plaintiff has been found to
have no standing to sue, the question of whether other issues in the case had
been properly decided or not does not arise. This is because the court has
no jurisdiction to entertain the claim. F
[276] In another case, the Nigerian Supreme Court in Adesanya v. President
of the Federal Republic And Others [1981] 5 SC 112 said at p. 174:
Locus standi or standing to sue is an aspect of justiciability and, as such,
the problem of locus standi is surrounded by the same complexities and
vagaries inherent in justiciability. The fundamental aspect of locus standi is G
that it focuses on the party seeking to get his complaint before the court,
not on the issues he wishes to have adjudicated.
[277] The four cases are of course cases of foreign origin, namely from India
and Nigeria, which may not, I must admit, be of great assistance in
interpreting arts. 4(4) and 128(1)(a) of our Constitution. They are cited H
merely to illustrate the point that there are diverging views among different
countries on the question whether the rule on locus standi should be applied
liberally or restrictively.
[278] As for the procedure to be followed in deciding whether to grant or
I
to refuse leave, the English case of IRC v. Ex parte National Federation of Self
Employed and Small Businesses [1982] AC 617 is instructive. In that case, the
House of Lords held that standing to sue should be considered in two stages.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 397

A Firstly, at the leave stage the court should refuse locus standi to those who
appear to be “busybodies, cranks and other mischief – makers” (per Lord
Scarman). Secondly, if leave is granted, the court may consider standing to
sue again as part of the hearing of the merits of the case, where it may decide
that in fact the applicant does not have “sufficient interest”.
B
[279] The first stage necessarily requires the court to determine if the
applicant is or is not a busybody, a crank or a mischief-maker. If he or she
is such a litigant, then locus standi should be refused and the matter ends there
without having to proceed to the second stage. This is because, in the words
of Lord Scarman, “I do not see any purpose served by the requirement for
C leave”.
[280] There is no reason in my view why this court should not adopt the
two-stage process laid down in IRC as our law in determining standing to sue
in an application for leave under art. 4(4) of the Constitution, although it is
not a case on constitutional challenge. The serious nature of the challenge
D
under art. 4(4) read with art. 128(1)(a) of the Constitution is all the more
reason why the procedure should be adopted.
[281] IRC was a case on administrative law in relation to locus standi in an
application for judicial review under O. 53 of the English Rules of the
E
Supreme Court, which is equivalent to O. 53 of our Rules of Court 2012
(“the ROC”) except that our requirement for the conferment of locus standi
under the order is being “adversely affected” instead of having “sufficient
interest”.
[282] It was on the basis of this authority that this court proceeded to hear
F encl. 26 and encl. 68 together instead of hearing encl. 68 first to be followed
by encl. 26 as requested by learned counsel for the Government of Kelantan.
The case is also authority for the proposition, at least as the law stood in
England at the material time, that although leave had been granted, the case
might still be dismissed if the court found that the applicant had no
“sufficient interest” in the subject matter of the dispute.
G
[283] In Malaysia, the law on locus standi in relation to a constitutional
challenge has been explained with admirable clarity by my learned sister
Nallini Pathmanathan FCJ delivering the majority judgment of this court in
Datuk Seri Anwar Ibrahim v. Government Of Malaysia & Anor [2020] 3 CLJ 593
H (“Anwar Ibrahim (1)”). It was a case that was brought by way of a special case
under s. 84 of the Courts of Judicature Act 1964 (“the CJA”). On the same
page with Her Ladyship in the 5-2 majority were Azahar Mohamad CJ
(Malaya), Mohd Zawawi Salleh FCJ, Abang Iskandar Abang Hashim FCJ
(now PCA) and Idrus Harun FCJ (later Attorney-General).
I [284] In that case, the two constitutional questions referred to this court by
the High Court Judge for determination under s. 84 of the CJA were:
(i) whether s. 12 of the Constitution (Amendment) Act 1983, s. 2 of the
398 Current Law Journal [2024] 3 CLJ

Constitution (Amendment) Act 1984 and s. 8 of the Constitution A

(Amendment) Act 1994 were unconstitutional, null and void and of no effect
on the ground that they violated the basic structure of the Constitution;
(ii) whether the National Security Council Act 2016 was unconstitutional.
[285] The facts of the case are not on all fours with the facts of the present
B
case, but the question of law on locus standi that the court was dealing with
in that case mirrors the question of law on locus standi that this court is
dealing with in the present application. The majority in that case refused to
answer the constitutional questions posed as the questions were found to be
abstract, purely academic and bereft of any actual controversy. It is therefore
safe to say that the petitioner in that case failed in his challenge to the validity C
of the impugned laws not because he failed to establish the merits of his case
but because he failed to establish his locus standi to maintain the action. The
approach taken by the majority is more in line with the restrictive application
of the rule on locus standi rather than the liberal approach.
D
[286] To appreciate the relevance of the majority decision on locus standi and
to avoid accusation of cherry-picking and misreading of the judgment, I am
taking the unusual step of reproducing the whole and entire paras. [43] to [59]
of the majority judgment. In my view, the 17 paragraphs are worthy of being
quoted in extenso, given the forensic force of the reasoning. Paragraphs [43]
to [59] are as follows: E

[43] The key question is thus whether there is a real and actual controversy between
the parties which will affect their rights and interests. Conceptually, the question is
inextricably intertwined with the test of locus standi, which requires a party to have
been ‘adversely affected’ in the sense that they have a ‘real and genuine interest in
the subject matter’ (Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air F
dan Komunikasi & Anor [2014] 2 CLJ 525; [2014] 3 MLJ 145 at para [58]).
A violation of a constitutional right gives rise to both a ‘real interest’ for a party to
bring the action and a ‘real controversy’ between the parties to the action (Tan Eng
Hong at para [106]. As such, in the context of determining whether there
is a real controversy in a constitutional challenge, attempts to sever the
requirement of an actual controversy from the notion of standing would be G
‘conceptually awkward, if not impossible’ (Croome v. State of Tasmania [1997]
HCA 5; (1997) 142 ALR 397 at pp 405-406). For the purposes of this case,
we will frame the foregoing discussion in terms of the Metramac test of
‘actual controversy’.
Whether the mere existence of a law gives rise to an actual controversy H
affecting the parties
[44] In this case, the plaintiff does not assert that the NSCA has been
invoked so as to violate his rights and interests, or that of anyone else.
His grievance is purely legal, directed against the alleged inherent
unconstitutionality of the Act. The constitutional questions referred to us arises
I
from no other fact than the very existence of the Act itself. In these peculiar
circumstances, the central issue is whether the questions referred are purely abstract
or academic. Can the mere existence of a law, without more, give rise to
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 399

A an actual controversy affecting the parties? Or must the impugned law be

used to the detriment of a party before it can constitute an actual
controversy?
[45] Useful illumination on this question can be gleaned from three cases
in different jurisdictions, all relating to similar subject matters: Tan Eng
B Hong v. Attorney-General [2012] 4 SLR 476; [2012] SGCA 45 (Singapore
Court of Appeal), Croome v. State of Tasmania [1997] HCA 5; (1997) 142
ALR 397 (High Court of Australia), and Leung TC William Roy v. Secretary
for Justice [2006] HKCU 1585 (Hong Kong Court of Appeal). In each case,
the appellants, homosexual men, challenged the constitutionality of a
particular provision in the local criminal legislation which criminalized
C consensual sexual conduct between males. In all three cases, the apex
courts held that the appellants were entitled to bring the constitutional
challenge; they need not wait to be prosecuted under the impugned provisions for
a real controversy to arise.
[46] In Tan Eng Hong (supra), the appellant was arrested and charged under
D s. 377A of the Singapore Penal Code for the commission of an act of gross
indecency with another male person. The appellant applied for a
declaration the section is unconstitutional. The charge was later
substituted with a charge under a different section. The appellant pleaded
guilty to the substituted charge and was accordingly convicted and
sentence. The attorney general applied to strike out the constitutional
E challenge.
[47] The Singapore Court of Appeal held that the crux of the standing
requirement as well as the requirement for a real controversy is the violation of a
constitutional right; an arguable violation of constitutional rights gives rise to a real
controversy for the court to determine (at paras [84], [179]). ‘Every citizen has
constitutional rights, not every citizen’s constitutional rights will be
F
affected by an unconstitutional law in the same way’; pertinently, while
a constitutional right may be enjoyed by all citizens, the mere holding of a
constitutional right is insufficient to found a challenge to the law – there must also
be a violation of the constitutional right (at para [93]). It was found that an
arguable violation of constitutional rights occurred when the appellant
G was arrested and detained under an allegedly unconstitutional law, even
though the charge was subsequently substituted (at para [151]).
[48] However, the court went further and opined that the mere existence
of an allegedly unconstitutional law can, in some cases, constitute a
violation of constitutional rights. VK Rajah JA rejected the proposition
that a prosecution under an allegedly unconstitutional law must be
H
demonstrated in every case before a violation of constitutional rights can
be shown (at para [110]):
The effects of a law can be felt without a prosecution, and to insist
that an applicant needs to face a prosecution under the law in
question before he can challenge its constitutionality could have
I the perverse effect of encouraging criminal behavior to test
constitutional issues. Even though a violation of constitutional
rights may be most clearly shown where there is a subsisting
prosecution under an allegedly unconstitutional law, we find that
400 Current Law Journal [2024] 3 CLJ

a violation may be established in the absence of a subsisting A

prosecution. In certain cases, the very existence of an alleged
unconstitutional law in the statute books may suffice to show a
violation of an applicant’s constitutional rights.
[49] While the court recognized the possibility of such a case in principle, it declined
to lay down a general rule that the existence of an allegedly unconstitutional B
law constitutes a violation of the applicant’s constitutional rights in every case
(at para [109]). Whether the very existence of an unconstitutional law in the statute
books suffices to show a violation of constitutional rights depends on what exactly
that law provides (at para [94]). The court took pains to emphasise that such
a case, though ‘conceivable’, would be ‘rare’ and ‘extraordinary’, and
cautioned that ‘no such case has ever been brought to the attention of C
the courts here’ (at [94], [106]).
[50] The court considered certain factors pointing towards a violation of
constitutional rights by the mere existence of a law. One of the factors is
whether the law specifically targets a particular group: a violation of constitutional
rights ‘may be more easily demonstrated where the law specifically targets a group D
and the applicant is a member of that group’ (at para [94]). It was observed,
without going into the merits of the challenge, that the impugned section
affects the lives of a portion of the community in a very real and intimate
way (at para [184]).
[51] Another relevant factor is a real and credible threat of prosecution
under such a law (at para [179]): E

Although the existence of a lis is clearer when a prosecution has

been brought under an allegedly unconstitutional law, the very fact
of a real and credible threat of prosecution under such a law is
sufficient to amount to an arguable violation of constitutional
rights, and this violation gives rise to a real controversy for the F
court to determine.
[52] The threat of prosecution must be real and credible and not merely fanciful (at
[111]-[114]). The reason why such a threat may be seen as giving rise to
an actual controversy is ‘that individuals should not be compelled to act
against what is, on the face of it, the law, and thereby risk the G
actualization of the threat of prosecution’ (at para [178]). In that case, the
court found that the threat of prosecution under the impugned section was not merely
fanciful, given that the appellant professes to regularly participate in the kind of
conduct criminalized (at para [183]).
[53] In the other two cases, no prosecution had been brought against the
H
appellants pursuant to the impugned provisions. Nevertheless, the courts
similarly held that the appellant need not wait to be prosecuted in order
for an actual controversy to arise before a challenge can be mounted. In
Croome, Goudron, McHugh and Gummow JJ in the High Court of
Australia rejected the contentions that the appellants’ claim for a
declaration of unconstitutionality was premature and that there was no I
immediate right or liability to be determined, because the state had not
yet invoked legal proceedings to enforce the criminal law against the
appellants (at pp 409, 411). The appellants’ conduct of their personal lives were
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 401

A found to have been overshadowed by the presence of the impugned provisions in

significant respects. Moreover, since the state has not disabled itself from
prosecuting in the future, it was found that the appellants had a real
interest and did not raise a question which is abstract or hypothetical (at
p 411).

B [54] Crucially, the principle that an appellant who has not been prosecuted
by an impugned law may challenge its validity is not without limit. Brennan CJ,
Dawson and Toohey JJ stressed that they did not assent to the ‘broad proposition’
that any person who intends to act in contravention of a law can seek a declaration
that the law is invalid, purely by reason of that intention (at p 402).
[55] The same conclusion was reached by the Hong Kong Court of
C
Appeal in Leung. In that case, an argument was raised that the
constitutional challenge was based on the ‘purely hypothetical situation’
that the appellant may be prosecuted in the future (at para [26]). The court
nevertheless held that in view of ‘exceptional circumstances’, there was sufficient
justification to entertain the challenge (at para [30]). Notwithstanding the fact
D that ‘a prosecution is neither in existence nor in contemplation’,
Ma CJHC found it clear that the appellant ‘and many others like him have been
seriously affected by the existence of the legislation under challenge’ (at para [29]):
It is fair to say that the respondent has been living under a considerable
cloud. The effect of the respondent’s submissions is really that the
constitutionality of the affected provisions can only be tested if the
E Applicant were to go ahead with those activities criminalized by the
provisions in question and be prosecuted for them. In other words,
access to justice in this case could only be gained by the Appellant
breaking what is according to the statutory provisions in question,
the law.
F [56] Again, the requirement of ‘exceptional circumstances’ was emphasized. Such
situations cannot be enumerated exhaustively but must be determined on a case by
case basis (at para [28]). Examples include’situations where it would be
undesirable or prejudicial to force interested parties to adopt a wait and
see attitude (that is, to force persons to wait until an event occurs) before
dealing with a matter’ (at para [28]).
G
[57] These principles are not foreign to the Malaysian courts. The
proposition that a real threat to a party’s rights can give rise to an actual
controversy that is not abstract or academic was recognized by the Federal
Court in Datuk Syed Kechik bin Syed Mohamed v. Government of Malaysia
& Anor [1978] CLJU 44; [1978] 1 LNS 44; [1979] 2 MLJ 101. In that case,
H in response to an apparent threat to expel him from the state, the
appellant sought declarations that he had the right to remain in Sabah.
The Federal Court held that the action demonstrated a real dispute and
was not academic. Suffian LP held that (at p 108):
As the distinguished American scholar, EM Borchard on
I
‘Declaratory Judgments’, 2nd Ed, p 20, referring to those cases where
no traditional wrong has yet been committed or immediately
threatened, says ‘a condition of affairs is disclosed which indicates the
existence of a cloud upon the plaintiff’s rights, a cloud which endangers his
402 Current Law Journal [2024] 3 CLJ

peace of mind, his freedom and his pecuniary interests ...’... The fact that A
the declaration was sought before the statutory powers were
exercised was not a consideration weighing against the grant of
that declaration ... we consider that a court should make it possible
to settle real disputes immediately they arose, so that the parties
may act with certainty and not be under the threat of legal
uncertainty and should be able to discount the future. (emphasis B
added)
[58] We consider the situation envisaged - where a constitutional
challenge can be brought on the basis of the mere existence of a law –
is not technically an exception to the general rule against determining
abstract or academic questions without actual controversy. Rather, such a C
situation is an exceptional case where, due to certain factors, the existence of the law
itself affects the rights of parties and gives rise to an actual controversy.
[59] We find much merit in the reasoning of the cases above. In our
model of concrete review, courts would not ordinarily treat the mere
existence of a law as an actual controversy suitable for determination. D
However, in the face of an exceptional law specifically targeted against a minority
group, the very existence of which amounts to a real and credible threat to their rights
– Holocaust-type laws would be an extreme example – the courts are not obliged to
stand idly by until the threat materialized. In the words of Lord Woolf (Droit
Public – English Style, (1995) Public Law 57 at p 68), ‘If Parliament did
the unthinkable, then I would say that the courts would also be required E
to act in a manner which was without precedent’.
(emphasis added)
[287] The words italicised represent the key points in the judgment. For
completeness, it will not be out of place in my view to mention briefly the
dissenting judgment of David Wong Dak Wah CJ (Sabah and Sarawak) in the F
same case who held, contrary to the majority view, that the applicant was
clothed with the necessary locus standi, not that the dissenting judgment has
any force of law – it only has persuasive authority (Yong Tshu Khin & Anor
v. Dahan Cipta Sdn Bhd & Anor And Other Applications [2021] 1 CLJ 631;
[2021] 1 MLJ 478) or that I am in agreement with it. Essentially, the reasons G
given by the learned CJ (Sabah and Sarawak) were as follows:
[165] I had the opportunity to deal with this issue of locus standi in Robert
Linggi v. The Government of Malaysia [2011] 7 CLJ 373 where I took a view
quite similar to that of Abdoolcader SCJ. My views were adopted and
applied in Manoharan Malayalam & Anor v. Dato’ Seri Mohd Najib Tun Hj
H
Abdul Razak & Ors [2013] 8 CLJ 1010.
[166] Therefore, in a case where “the complaint of the plaintiff is that the
Federal Government or its agent has violated the Federal Constitution
by its action or legislation, he has the locus to bring an action to declare
the action of the Federal Government or its agent as being
unconstitutional, without the necessity of showing that his personal I
interest or some special interest of his has been adversely affected”
(per Hishamudin Yunus JCA in Manoharan Malayalam.)
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 403

A [167] In fact, the proposition is so obvious that it should not need

authority. Any contrary proposition would lead to absurdity and I can do
no better than to quote the words of Abdoolcader SCJ from Lim Kit
Siang (at p. 101 (CLJ); p. 45 (MLJ)):
The effect of the denial of standing in such circumstances would
B be, and it has indeed been so suggested, that we will have to fold
our arms and do nothing, in which event I would add we might
as well have to hang our heads in sorrow and perhaps even in
mortification in not being able to at least entertain for
consideration on its merits any legitimate complaint of a public
grievance or alleged unconstitutional conduct.
C (emphasis added)
[288] The emphasis clearly was to consider the merits of the complaint
rather than on the standing to sue. In Robert Linggi v. The Government Of
Malaysia [2011] 7 CLJ 373, David Wong Dak Wah J (as he then was) was
concerned with the “erosion of the rights of Sabah in so far as the constitution
D and jurisdiction of the High Court of Sabah and Sarawak and the
appointment, removal and suspension of judges of that court” and that “when
there is a challenge concerning any dismantling of the supreme law of the
country, litigation should be encouraged”.
[289] Pausing here, I must hasten to mention that this court, also through the
E
judgment of my learned sister Nallini Pathmanathan FCJ in the recent case
of Datuk Bandar Kuala Lumpur v. Perbadanan Pengurusan Trellises & Ors And
Other Appeals [2023] 5 CLJ 167 (“Taman Rimba”), approved of the above
passage by Abdoolcader SCJ in coming to the conclusion that the majority
decision of the then Supreme Court in Government Of Malaysia v. Lim Kit
F Siang & Another Case [1988] 1 CLJ 219; [1988] 1 CLJ (Rep) 63; [1988]
2 MLJ 12 (“Lim Kit Siang”) no longer represent the law on locus standi in
Malaysia, particularly in public interest litigation.
[290] At para. [438] my learned sister on her part quoted with approval the
following passage in the dissenting judgment of Abdoolcader SCJ:
G
[438] ... To deny locus standi in the instant proceedings would in my view
be a retrograde step in the present stage of the development of
administrative law and a retreat into antiquity. The merits of the
complaint are an entirely different matter ... The principle that transcends every
other consideration must ex necessitate be that of not closing the door to the ventilation
H of a genuine public grievance and more particularly so where the disbursement of
public funds is in issue, subject always of course to a judicial discretion preclude the
phantom busybody or ghostly intermeddler. (emphasis added)
[291] It was a tacit approval of the minority (Seah and Abdoolcader SCJJ)
judgment on the issue of locus standi and discarding the majority (Salleh Abas
I LP, Abdul Hamid CJ (Malaya) and Hashim Yeop A Sani SCJ) judgment
which until then had stood as the law on locus standi in Malaysia for 35 years
after it was handed down in 1988. Abdoolcader SCJ in his dissenting
404 Current Law Journal [2024] 3 CLJ

judgment described the majority judgment as “a retrograde step in the present A

stage of the development of administrative law and a retreat into antiquity”,
true to his pledge at the start of his judgment that he would muster his dissent
“without mincing words.”
[292] Following its adoption of the minority judgment in Lim Kit Siang, this
B
court in Taman Rimba laid down a new test for locus standi, that it should
be a “broad and liberal” test, which means to be more relaxed or less
restrictive in granting leave, especially in public interest litigation. It also
clarified, among other points of law, the common law duty of administrative
bodies to give adequate reasons for their decisions and the issue of conflict
of interest involving administrative bodies. C

[293] Given the impact that Taman Rimba has and will continue to have on
the law relating to locus standi in Malaysia, it is important in my view to
ascertain if the “broad and liberal” test laid down in that case has any
application in determining locus standi in a constitutional challenge under
D
art. 4(4) read with art. 128(1)(a) of the Constitution. Obviously, the answer
has to be context-driven. As can be seen from the factual make-up of the case,
it was a case on locus standi in relation to judicial review of administrative
action under O. 53 r. 2(4) of the ROC. It was not a case on challenging the
competency of a State Legislature to make law under art. 4(4) of the
Constitution. The ratio decidendi of the case on the issue of locus standi is E
encapsulated in the following paras. (7) and (8) of the headnote to the case:
Held (7) The issue of locus standi in the instant appeals remained a matter
for the court to determine under O. 53 r. 2(4) of the ROC by determining
whether the respondents were persons under the relevant legislation, here
the Federal Territory (Planning) Act 1982 (FTA). As such, the F
respondents were not required to bring themselves within the category of
r. 5(3) of the Planning (Development) Rules 1970 (“the Planning Rules”).
The statutory provisions of the FTA prevail over r. 5(3) of the Planning
Rules wherein, the FTA provides the public with the opportunity to
participate and contribute to the proper planning of the Federal
Territories. It was unnecessary for the respondents to fall within the G
categories of landowners set out in r. 5(3) as O. 5(3) r. 2(4) of the ROC
does not stipulate that the respondents need to establish a statutory right
in order to meet the requirements of locus standi. Under O. 53 r. 2(4), a
person seeking the various reliefs under that provision should meet the
threshold test of being “adversely affected”.
H
Held (8) All the respondents enjoyed standing to sue. This is because the
first to fifth respondents represented parcel proprietors in developments
close to or neighbouring the subject land which was a public space
comprising a park for public use, were adversely affected by the
appropriation of half such space for the purpose of a private development.
Similarly so with the sixth to tenth respondents, who were placed to enjoy I
their individual rights to utilize the subject land as a public park. As such
the respondents fell within the category of persons who were adversely
affected because they were able to show a genuine interest in the subject
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 405

A land and its development otherwise than in conformity with the KLSP
which was gazetted in 2004. There was no necessity for these parties to
prove that they had suffered special detriment or prejudice which was
personal to them.
[294] Clearly, in dealing with the issue of locus standi, this court in Taman
B Rimba was concerned with O. 53 r. 2(4) of the ROC vis-à-vis r. 5(3) of the
Planning Rules. It was decided that under O. 53 r. 2(4) of the ROC, the
respondents were only required to show that they were “adversely affected”
in order for them to be conferred with locus standi. They were not required
to fall under the category of landowners set out in r. 5(3) of the Planning
C Rules in order to be so conferred with standing to sue.
[295] That is the factual context in which the “broad and liberal” test is to
be understood. It will be wrong to randomly apply the test to an application
for leave under art. 4(4) of the Constitution without regard to other
considerations which are not relevant considerations in an application for
D leave under O. 53 of the ROC. On the facts, the respondents in that case were
found to have met the threshold for the conferment of standing to sue as they
were “adversely affected” and had a “genuine interest” in the subject land
and its development as they either represented parcel proprietors close to the
subject land or having the right to enjoy the land as a public park.
E [296] Factually therefore, the case has nothing in common with the present
case as it involved, in the first place, statutory provisions which are wholly
irrelevant for the purposes of the present application. The present case is
concerned with the competency of a State Legislature to make law under
art. 4(4) of the Constitution, and not with judicial review under O. 53 of the
F ROC to correct the decisions of administrative bodies like Dewan Bandaraya
Kuala Lumpur (DBKL).
[297] The only similarity with the present case, if at all, is the requirement
of law as laid down by the majority in Anwar Ibrahim (1) that in order to be
conferred with locus standi, the petitioners must show “genuine interest” and
G that they are “adversely affected” by the impugned provisions, although not
in the same way that the respondents in Taman Rimba were adversely
affected by the decision of the local authority.
[298] Taman Rimba is therefore not a case that supports the petitioners’
cause on the issue of locus standi. It was a case on locus standi in relation to
H
judicial review applications to challenge administrative actions, the classic
grounds of which are illegality, irrationality and procedural impropriety
(see: Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC
374 per Lord Diplock). These are not factors to consider in determining
locus standi in a constitutional challenge. The pivotal issue in determining
I locus standi in a constitutional challenge is whether there is an arguable
violation of the petitioner’s constitutional rights.
406 Current Law Journal [2024] 3 CLJ

[299] Order 53 r. 2(4) of the ROC on which Taman Rimba is based is A

couched in the following language:
Any person who is adversely affected by the decision of any public
authority shall be entitled to make the application.
(emphasis added)
B
[300] By the terms of the order, an application for judicial review is to
challenge the decision of any “public authority” by any person “adversely
affected” by the decision. There is nothing in the provision that can be
construed as extending its application to acts of Parliament or the State
Legislature in enacting laws. This does not mean however that the majority
in Anwar Ibrahim (1) was wrong to require the applicant in a constitutional C
challenge to establish being “adversely affected” in order to be conferred
with standing to sue, in addition to showing “genuine interest” and an
arguable violation of constitutional rights.
[301] While it is true that common law jurisdictions are liberalising the rule
D
on locus standi, it must be borne in mind that the authorities on the subject
relate more to administrative law than to constitutional law. They deal with
complaints of maladministration rather than with constitutional breaches.
The idea is to prevent the Executive or public authority from acting with
impunity. Perhaps the context is best explained by Professor MP Jain in his
book Administrative Law in Malaysia and Singapore Malayan Law Journal, E
Malaysia 1997 when he said at p. 749:
The present-day tendency all over the common law world is towards
liberalisation of locus standi to seek judicial redress against complaints of
maladministration. It is to be appreciated that if the rule of standing is
strict, there may arise a situation when there is no one qualified to bring F
an action in the court and consequently, the administrative order then go
unreviewed. This will amount to a negation of rule of law.
[302] In any case, even if liberalisation or relaxation of the locus standi rule
is to be extended to a constitutional challenge, it must not be to allow
busybodies to participate in proceedings which they have no legal right to G
participate in. The locus standi rule must not be sacrificed on the altar of
merits or “public interest”. That is unacceptable as a matter of principle. I
do not think the cases that lean towards liberalising the rule on locus standi
can be construed as endorsing such breach of principle. As held by the House
of Lords in IRC, at the first stage of determining standing to sue, leave should H
be refused to those who appear to be “busybodies, cranks and other mischief-
makers”. Abdoolcader SCJ in Lim Kit Siang would describe them as
“phantom busybodies or ghostly intermeddlers”. Strong words indeed to
express his disapproval of abuse of the court process by those who have no
legal right to bring an action, even comparing them with ghosts, or hantu in I
Malay.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 407

A [303] What is pertinent to note with regard to Taman Rimba is that there is
nothing in the judgment that can be construed as departing from the views
held by the majority in Anwar Ibrahim (1). This is noteworthy because even
though Anwar Ibrahim (1) is not a case on art. 4(4) of the Constitution (it was
not an incompetency challenge), it is highly relevant to the issue before the
B court in the present application as it is also a case that concerns the issue of
locus standi in a constitutional challenge.
[304] The minority judgment in Lim Kit Siang must also be understood in
the same context and the case is not to be taken as authority for saying that
locus standi may be conferred in every case of constitutional challenge so long
C as there is a “genuine public grievance” over the constitutionality of any law
passed by the State Legislature.
[305] Like Taman Rimba it was a case on judicial review under O. 53 of the
ROC but under a different rule, which is r. 2(2), to declare the letter of intent
issued by the Federal Government to United Engineers (M) Bhd (UEM) in
D
respect of the North and South Highway invalid and for a permanent
injunction to restrain UEM from signing the contract with the Government.
Like Taman Rimba, it was not a challenge on the constitutional validity of
any law passed by the State Legislature.

E
[306] In dissenting from the majority on the issue of locus standi in Anwar
Ibrahim (1), David Wong Dak Wah CJ (Sabah and Sarawak) who also
applied Lim Kit Siang in his minority judgment, appears to have been
swayed by the lack of objection by the Attorney-General in “relaxing” the
locus standi rule. This is how His Lordship dealt with the issue:
F [161] In this case, one must not overlook the fact that the Attorney
General did not make any objection and this to me is not without
significance bearing in mind that the Attorney General is the
Government’s main advocate and as most recently reaffirmed by this
court in PCP Construction Sdn Bhd v. Leap Modulations Sdn Bhd; Asian
Arbitration Centre (Intervener) [2019] 6 CLJ 1 (‘PCP Construction’), is also the
G guardian of public interest. His dual capacity makes the Attorney
General’s position unique and in a matter of constitutional challenge as
we have here, the lack of objection by the Attorney General or his
Chambers should and in my considered view be taken as a reason for the
courts to relax the locus standi rule. Though we do not expect the
Attorney General to overtly challenge the constitutionality of any
H legislations which his chambers helped to draft, the Attorney General
however bearing in mind that he is also the guardian of public interest
should take an open stand when it comes to such constitutional challenge
especially so when it affects the basic fundamental rights of the citizens
of this country.
(emphasis added)
I
408 Current Law Journal [2024] 3 CLJ

[307] In the present case, the issue of objection or acquiescence by the A

Attorney General to the impugned provisions does not arise as the Federal
Government, which normally is represented by the Attorney General’s
Chambers, is not a party to the action. Therefore, it is unclear what the
Federal Government’s stand is on the constitutional challenge mounted by
the petitioners in encl. 26. By virtue of art. 4(3)(b) of the Constitution, the B
Federal Government would have been the proper party to challenge the
validity of the impugned provisions without having to obtain leave.
[308] The majority in Anwar Ibrahim (1) would have been fully aware of the
fact that the Attorney General in that case did not object to the applicant’s
locus standi in coming to the conclusion that the applicant Datuk Seri Anwar C
Ibrahim had no locus standi to maintain the action. In all likelihood, the
majority had been appraised of the contrary stand taken by the minority and
disagreed with it. In short, the majority did not agree with David Wong Dak
Wah CJ (Sabah and Sarawak) for the minority that the lack of objection by
the Attorney-General should be a reason to “relax” the locus standi rule in D
a constitutional challenge.
[309] I am fully aware that the decision of the majority in Anwar Ibrahim (1)
had been set aside by a review panel of this court in Datuk Seri Anwar Ibrahim
v. Government Of Malaysia & Anor [2021] 6 CLJ 1 (“Anwar Ibrahim (2)”)
pursuant to r. 137 of the Rules and a re-hearing ordered but in my view the E
setting aside of the decision does not in any way render the majority opinion
on locus standi irrelevant if otherwise it is a correct statement of the law. The
reasoning, which I must say without being patronising, is flawless and speaks
for itself.
F
[310] Any attempt to undermine the relevance of the majority judgment on
the issue of locus standi will be futile. There is authority to say that a decision
may be reversed on other grounds but still have some precedential authority
(see: Durning v. Citibank, NA 950 F 2d 1419 (1991), a decision of the United
States Court of Appeals, Ninth Circuit).
G
[311] In Michigan Millers Mutual Ins Co v. Bronson Plating Co, 197 Mich App
482; 496 NW2d 373 (1992), the court was more explicit when it said that
“[j]ust as the discovery of one rotten apple in a bushel is no reason to throw
out the bushel, one overruled proposition in a case is no reason to ignore all
other holdings appearing in that decision.”
H
[312] In Straman v. Lewis 220 Mich App 448; 559 NW2d 405 (1996), the
Court of Appeals cited Michigan Millers for the proposition that “holdings of
this court not addressed on the merits by the Supreme Court remain binding
despite reversal on other grounds.”
[313] I am not aware of any authority within our shores which says that I
where a decision is set aside on other grounds, the effect is to obliterate the
entire decision such that no reference can be made in future cases to other
parts of the judgment “not addressed on the merits” by the court which
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 409

A reversed the decision on other grounds. Even textbook authorities and

academic journals are used as reference material in court proceedings unless
they have been proven to be wrong or they are of no intrinsic value.
[314] I do not wish to belabour the point but it is crucially important to
appreciate that the setting aside of the majority decision in Anwar Ibrahim (1)
B
by the review panel in Anwar Ibrahim (2) was not because the decision of the
majority on locus standi was held to be wrong but because it breached the audi
alteram partem rule by not giving the plaintiff Datuk Seri Anwar Ibrahim the
right to be heard on the question of whether the constitutional questions
posed for the court’s determination were abstract, academic and
C hypothetical, which had resulted in grave injustice to the applicant as
successfully argued by the late Datuk Seri Gopal Sri Ram for the applicant.
[315] There were only two issues of law for the review panel’s
determination in that case and they were: (i) the circumstances under which
the court of final appeal has jurisdiction to review its own decision; and
D
(ii) whether a breach of natural justice falls or should fall within the limited
grounds for establishing the jurisdiction for review. The correctness of the
majority view on the test to be applied in determining locus standi in a
constitutional challenge was not in issue.

E
[316] It was clearly a decision that was centric to the facts of the case, ie,
a denial by the majority of the applicant’s right of hearing on the
constitutional questions, hence the order for a re-hearing of the matter. What
is also clear and which bears repetition is that the review panel did not
overrule or disagree with the earlier panel’s exposition of the law on locus
standi. Nowhere in the grounds of judgment did the review panel say that the
F
majority in Anwar Ibrahim (1) was wrong on the law relating to locus standi
in a constitutional challenge.
[317] To remove any lingering doubt, if any, as to the actual reason why
Anwar Ibrahim (1) was set aside by Anwar Ibrahim (2), I think it is necessary
for me to set out the more detailed background facts of the case leading to
G
the decision by Anwar Ibrahim (2). For this purpose, suffice it if I refer to the
headnote to the case. They are as follows, with the necessary modifications:
[318] The applicant filed an originating summons in the High Court seeking
for a declaration that the National Security Council Act 2016 is
H unconstitutional. At the hearing before the High Court, two preliminary
objections were raised against the suit: (i) that the High Court had no
jurisdiction to determine the dispute as the subject matter of the challenge
was for the exclusive jurisdiction of the Federal Court; and (ii) that the
applicant did not have the locus standi to maintain the suit. The High Court
Judge sustained the first preliminary objection on the ground that the
I
challenges would have to be initiated directly in the Federal Court. However,
no remark or ruling was made by the judge on the second preliminary
objection concerning the issue of locus standi. On appeal to the Court of
410 Current Law Journal [2024] 3 CLJ

Appeal, the same preliminary objection was sustained premised on the A

principle of stare decisis. The appeal was accordingly dismissed. No issue of
locus standi was raised by the parties. At the hearing of the leave motion at
the Federal Court against the decision of the Court of Appeal, the parties
agreed that the High Court had the jurisdiction to determine the dispute.
Accordingly, the matter was remitted to the High Court for the determination B
of the originating summons. At the High Court, before another judge, the
applicant filed a reference application for the case to be transmitted to the
Federal Court pursuant to s. 84 of the Courts of Judicature Act 1964
(“the CJA”) and r. 33 of the Rules. There was no objection raised by the
respondent, whereas, the locus standi point was completely abandoned. The C
High Court acceded to the application and, with the consent of the parties,
by way of a special case pursuant to s. 84 of the CJA, referred two
constitutional questions for the determination of the Federal Court:
(i) pertaining to the jurisdiction of the Federal Court to review its own
decisions which had been heard and decided; and (ii) concerning the
D
circumstances in which denial of the right to be heard can constitute a ground
for such review warranting a rehearing. On 11 February 2020, the earlier
panel, by a majority of five, declined to answer the questions on the ground
that they were abstract, academic, and hypothetical and therefore the
applicant lacked locus standi to pursue the action. Hence, the application
before the review panel pursuant to r. 137 of the Rules and the inherent E
jurisdiction of the court to set aside the decision of the earlier panel on the
grounds that: (i) there was a breach of natural justice as the applicant was not
given the opportunity to be heard on the issue of whether the constitutional
questions were abstract, academic and hypothetical; and (ii) the breach had
resulted in a grave injustice to the applicant. F

[319] In allowing the application, the review panel in Anwar Ibrahim (2) held
as follows in relation to the issue of locus standi:
Held (4) The specific issue of locus standi was never raised either by the
court or the parties. The majority, noting that the test of locus standi was
G
intertwined with the question of whether there was a real and actual
controversy, held that the applicant had not satisfied this test and, in
declining to answer the questions posed, held the constitutional questions
to be abstract, academic and hypothetical. The applicant was not given
notice as well as the opportunity to answer the issues of whether the
constitutional questions were academic and his locus standi to bring the
H
action. In the circumstances, a case for breach of natural justice had been
made out by the applicant in that the audi alteram partem rule had not been
observed.
[320] There are suggestions by some quarters that in determining locus standi
in public interest cases, Malaysia should adopt the liberal test expounded by
I
the Supreme Court of Canada in Canada (Attorney General) v. Downtown
Eastside Sex Workers United Against Violent Society [2012] SCR 524 where the
principle was laid down as follows:
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 411

A The traditional approach was to limit standing to persons whose private

rights were at stake or who were specially affected by the issue. In public
law cases, however, Canadian courts have relaxed these limitations on
standing and have taken a flexible, discretionary approach to public
interest standing, guided by the purposes which underlie the traditional
limitations.
B
2. In exercising their discretion with respect to standing, the courts weigh
three factors in light of these underlying purposes and of the particular
circumstances. The courts consider whether the case raises a serious
justifiable issue, whether the party bringing the action has a real stake
or a genuine interest in its outcome and whether, having regard to a
C number of factors, the proposed suit is a reasonable and effective means
to bring the case to court: Canadian Council of Churches v. Canada (Minister
of Employment and Immigration) [1992] 1 S.C.R. 236, at p. 253. The courts
exercise this discretion to grant or refuse standing in a “liberal and
generous manner” (p. 253).
(emphasis added)
D
[321] Three preconditions must therefore be met according to the Canadian
position, each one of which must be fulfilled, ie, cumulatively, before an
applicant is entitled to be conferred with locus standi: (i) the case raises a
serious justifiable issue; (ii) the applicant has a real stake or a genuine interest
in its outcome; and (iii) the suit is a reasonable and effective means to bring
E
the case to the court.
[322] Of interest to note is that the second compulsory requirement fits in
squarely with the requirement for the conferment of locus standi as laid down
by the majority in Anwar Ibrahim (1). Without getting drawn into a debate
F
on the wisdom of applying the “liberal and general manner” test in deciding
whether to grant or to refuse locus standi in a constitutional challenge, my
view is that since there is sufficient adjective law within our jurisdiction to
deal with the issue, there is no further need to seek guidance from beyond
our shores. The three apex court authorities from Australia, Hong Kong and
Singapore cited by the majority in Anwar Ibrahim (1) are sufficient for that
G
purpose.
[323] Furthermore, the “broad and liberal” test laid down in Taman Rimba
in determining locus standi, albeit confined to judicial review of administrative
actions, is already in line with the Canadian position as laid down in the
H
Downtown Eastside Sex Workers case (supra).
[324] Whatever may be the test to determine locus standi in a constitutional
challenge, be it liberal or restrictive, I am of the view that the test laid down
by the majority in Anwar Ibrahim (1) is the correct test, which importantly
has not been held to be wrong by any subsequent decision of this court,
I including by Taman Rimba itself, not even by way of obiter to preserve its
persuasive value if the intention was to qualify the majority decision in
Anwar Ibrahim (1) on the law relating to locus standi.
412 Current Law Journal [2024] 3 CLJ

[325] In any case, having regard to the factual context in which the three A
cases were decided, there is no real conflict between the test laid down in
Anwar Ibrahim (1) and the “broad and liberal” test applicable in judicial
review laid down by this court in Taman Rimba or the “liberal and generous
manner” test laid down by the Supreme Court of Canada in the Downtown
Eastside Sex Workers case. Even if there is a conflict, Anwar Ibrahim (1) should B
prevail, being a case on a constitutional challenge under our Constitution as
opposed to the other cases which are not.
[326] Therefore, and at the expense of being repetitive, the law on locus
standi in a constitutional challenge as laid down by the majority in Anwar
Ibrahim (1) is the law to be applied when it becomes necessary to determine C
whether a petitioner has the requisite standing to sue in a challenge under
art. 4(4) of the Constitution. Paragraph [64] of the judgment is particularly
relevant as it reflects the situation in the present application. This is what the
majority said:
[64] In the absence of actual controversy affecting the rights of parties, the D
constitutional questions referred to us are abstract and purely academic. The questions
have not become academic due to some change in the factual substratum; they were
academic for there was no real dispute underlying them to begin with. They exist
in a complete factual vacuum in the case before us. To answer the questions
posed would be a significant departure from the deep-rooted and trite rule
E
that the court does not entertain abstract or academic questions, and may
even represent a fundamental shift away from the common law concrete
review towards the European model of abstract review in constitutional
adjudication. Exceptionally cogent reasons would need to be provided to persuade
the Federal Court to undertake such a radical departure from established principles.
In this case the parties have not attempted to do so. F
(emphasis added)
[327] Thus, in order to establish locus standi, the petitioners in the present
case must first of all show that their challenge to the constitutional validity
of the impugned provisions does not exist in a factual vacuum by showing
that there is an arguable violation of their constitutional rights. Only then can G
a real and actual controversy between them and the Government of Kelantan
arise for this court’s determination in the exercise of its exclusive original
jurisdiction under art. 128(1)(a) of the Constitution. The petitioners have
completely failed to clear this hurdle by failing to point out which of their
constitutional rights that are or have been violated by the impugned
H
provisions.
[328] Their contention that the State Legislature of Kelantan had no
competency to enact the impugned provisions is irrelevant to the issue of
locus standi. That is a matter that goes to the substantive merits of the
challenge and not to the issue of standing to sue. Reference needs to be made I
again to the decision of the House of Lords in IRC which held that at the first
stage of determining standing to sue, leave should be refused to those who
appear to be “busybodies, cranks and other mischief-makers”. That is a
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 413

A reference to standing to sue and not to merits of the case as the court is not
supposed to give a right of hearing to “busybodies, cranks and other mischief-
makers” both before and after leave has been granted.
[329] A clear line must be drawn between standing to sue and merits of the
challenge. Determination of standing to sue must come before determination
B
of the merits. In colloquial language, the horse must be put before the cart
because it is the horse that pulls the cart forward and not the cart pushing
the poor horse round and round the mulberry bush.
[330] Surely the petitioners cannot be heard to say, even if they wanted to,
C
that the impugned provisions are in violation of their constitutional right to
equality before the law under art. 8 of the Constitution on the ground that
the provisions discriminate between them as Muslims and the non-Muslims,
or any other form of discrimination under the article. It would be ludicrous
for them to say so.
D [331] It needs to be reiterated that the mere fact that the impugned
provisions are arguably unconstitutional is no basis for the petitioners to
claim that their constitutional rights have thereby been compromised. As
decided by the Singapore Court of Appeal in Tan Eng Hong v. Attorney-
General [2012] 4 SLR 476, the mere holding of a constitutional right is
E
insufficient to find a challenge to the law – there must also be a violation of
the constitutional right.
[332] In any case, the petitioners are not asserting that the impugned
provisions have been invoked so as to violate their rights and interests or that
of anyone else. Their grievance is purely legal, directed at the alleged
F inherent unconstitutionality of the impugned provisions. The constitutional
questions referred to this court arise from no other fact than the very
existence of the impugned provisions themselves. In the circumstances, even
if this court were to consider the substantive merits of the case, it must
decline to answer the constitutional questions posed: see: Anwar Ibrahim (1).
In other words, the petition is doomed to fail in any event.
G
[333] Further, none of the grounds given by the petitioners in their petition
under the heading “material facts” and in the first petitioner’s affidavit in
support dated 25 May 2022 raise any real controversy between them and the
Government of Kelantan, let alone to show that they are “adversely affected”
H by the impugned provisions.
[334] At the end of the day, what it comes down to is that there is no factual
basis for this court to decide on the merits of the constitutional challenge by
the petitioners as there is no real dispute underlying them to begin with. It
is a petition in a factual vacuum. The challenge is based on a purely
I hypothetical situation arising from the existence of the impugned provisions,
which according to them in their initial averment of fact had struck fear in
their minds that the provisions may be enforced against them. Fear factor
414 Current Law Journal [2024] 3 CLJ

alone cannot, by a long shot, amount to a “real controversy” in a challenge A

so grave as to allege that the highest law-making body of the State of Kelantan
had no power to enact the impugned provisions.
[335] We all fear something at some point in our lives but in the serious
business of challenging the validity of laws made by Parliament or the State
B
Legislature, it must relate, not so much to an infringement of a private right
but to an infringement of a constitutional right. Nothing less will suffice. In
any event, this court must keep in mind that the petitioners are no longer
relying on their fear of enforcement of the impugned provisions as a ground
to challenge the validity of the provisions. This ground had been abandoned
without any explanation after they had successfully obtained leave on C
30 September 2022.
[336] In Karpal Singh v. Sultan Of Selangor [1987] 2 CLJ 342; [1987] CLJ
(Rep) 686; [1988] 1 MLJ 64, Abdul Hamid CJ (Malaya) (as he then was) had
this to say on the subject:
D
As regards ground (3), I would firmly say that an action may not be
brought to Court by a stranger to it. Indeed, generally, a person may not
even institute declaratory proceedings in respect of an act which, although
prejudicial to his interests, may not affect him in his private rights.
(See Guaranty Trust Co of New York v. Hannay & Co [1915] 2 KB 536, 532
per Pickford L.J. that “it does not extend to enable any stranger to the E
transaction to go and ask the Court to express its opinion in order to help
him on other transactions.”).
(emphasis added)
[337] Earlier when speaking of whether declaration should issue, the learned
CJ (Malaya) said: F
The plaintiff has by his Originating Summons sought a declaration. It is
fundamental principle that declaration will not be made if the application
for it is embarrassing or the declarations can serve no useful purpose:
see Mellstrom & Ors [1970] 2 All ER 9.
The learned Attorney-General has referred to a textbook on Declaratory G
Orders, 2nd Edition, by P.W. Young, on the conditions for declaratory
orders and has submitted that one of the conditions to be satisfied is that
(a) there must exist a controversy between the parties; (b) the proceedings must involve
a ‘right’; (c) the proceedings must be brought by a person who has a proper or tangible
interest in obtaining the order; (d) it must not be merely of academic interest,
hypothetical or one whose resolution would be of no practical utility. H

“The question must be a real and not a theoretical question; the person
raising it must have a real interest to raise it; he must be able to secure
a proper contradictor, that is to say, someone presently existing who has
a true interest to oppose the declaration sought.” (The Russian Commercial
& Industrial Bank v. British Bank for Foreign Trade [1921] 2 AC 438 at 448 I
per Lord Dunedin).”
(emphasis added)
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 415

A [338] I have to say with regret and with all due respect to the petitioners that
being Muslims themselves, it is rather out of character for them to assert that
the impugned provisions, which they would agree conform to the precepts
of Islam, are affecting them adversely and posing a threat to their livelihood.
It is understandable if non-Muslims were to raise those grounds in
B challenging the constitutional validity of the impugned provisions, but for
Muslims like the petitioners to do so is quite out of this world.
[339] The phrase “precepts of Islam” has been explained by Azahar
Mohamad CJ (Malaya) in his supporting judgment in Iki Putra Mubarrak,
citing the expert opinion of Professor Emeritus Tan Sri Dr Mohd Kamal bin
C Hassan in Sulaiman Takrib v. Kerajaan Negeri Terengganu; Kerajaan Malaysia
(Intervener) & Other Cases [2009] 2 CLJ 54. This is what His Lordship said
at para. [101]:
[101] Professor Emeritus Tan Sri Dr. Mohd Kamal bin Hassan who also
gave an opinion in Sulaiman Takrib, inter alia, states as follows:
D
2.2. In the context of the religion of Islam, the expression ‘precepts
of Islam’ has a broad meaning to include commandments, rules,
principles, injunctions – all derived from the Qur’an, the Sunnah
of the Prophet, the consensus of the religious scholars (‘Ijma’) and
the authoritative rulings (fatwas) of legitimate religious authorities,
E for the purpose of ensuring, preserving and/or promoting right
beliefs, right attitudes, right actions and right conduct amongst the
followers of Islam.
2.3. With regard to the scope of applicability of precepts of Islam,
human actions and behavior fall into three major and interrelated
domains, namely creed (aqidah), law (shari’ah) and ethics (akhlaq).
F
The creed is concerned with right beliefs and right attitudes
(deemed as actions of the heart), the law with right actions and
ethics with right conduct, right behavior and right manners.
2.4. Therefore the precepts of Islam possess the force of enjoining
or commanding or prohibiting actions or behavior which Islam
G considers good (ma’ruf) or bad (mungkar), permissible (halal),
prohibited (haram), allowable (mubah).
[340] To repeat what the learned Professor said, the precepts are “for the
purpose of ensuring, preserving and/or promoting right beliefs, right
attitudes, right actions and right conduct amongst the followers of Islam.”
H Absolutely nothing objectionable there, let alone violating any of the
petitioners’ constitutional rights or affecting them adversely as Muslims. On
the contrary, they provide a clear guideline for them to be good Muslims.
[341] In Tan Eng Hong (supra), the violation of constitutional right occurred
when the appellant was arrested and detained under an allegedly
I
unconstitutional law even though the charge was subsequently substituted
with a different offence. Moreover, as noted by the court, the threat of
416 Current Law Journal [2024] 3 CLJ

prosecution under the impugned provision was real and not merely fanciful A
given that the appellant professed to regularly participate in the criminalised
conduct.
[342] In the case of the petitioners, the question of a real threat of
prosecution under the impugned provisions does not arise as they have not
B
been arrested and detained under the impugned law. Nor have they professed
to regularly participate in the conduct criminalised by the provisions. This
is not to say that they would be conferred with standing to sue as a matter
of course if they had been so threatened with prosecution or regularly
participate in the criminalised conduct.
C
[343] There is nothing in Anwar Ibrahim (1) to suggest that those are valid
grounds for conferring locus standi in a constitutional challenge. The Court
of Appeal of Singapore in Tan Eng Hong seems to have taken a slightly
different view. If I understand the judgment correctly, its view was that a real
and credible threat (not merely imaginary or fanciful) of prosecution under
D
an arguably unconstitutional law is a factor to consider when deciding
whether to confer locus standi on the applicant.
[344] There may be valid reasons for the Singapore apex court to hold such
view, but the difficulty with the proposition speaking generally is that if
prosecution or threat of prosecution under an arguably unconstitutional law E
could as a matter of law be a basis for conferring locus standi at the leave stage,
the implication is profound in that any such criminal law, civil or Syariah,
which makes it a crime for any person to engage in such conduct, would be
open to challenge by those who themselves commit the criminalised conduct
or regularly participate in it.
F
[345] The situation may not arise in real life but in principle and in theory
at least, a serial rapist for example will then find it easier to be conferred with
locus standi and be granted leave to apply for a declaration that s. 376 of the
Penal Code is unconstitutional because from his perspective he is at a real
risk of being arrested and prosecuted for the offence of rape under that
G
section. After all, as Abdoolcader SCJ said in Lim Kit Siang, the merits of
the case are an entirely different matter, suggesting that the court should be
less strict in granting leave, “that of not closing the door to the ventilation
of a genuine public grievance”.
[346] What constitutes “genuine public grievance” however, may give rise H
to serious difficulty in a challenge under art. 4(4) of the Constitution due to
its vague and subjective imperative, in particular due to the need in a
constitutional challenge to show a violation of constitutional rights for the
conferment of standing to sue, which is not a requirement in an
administrative challenge.
I
[347] In Iki Putra Mubarrak, the petitioner was charged in the Selangor
Syariah High Court with attempted sexual intercourse against the order of
nature (sodomy) with certain other male persons under s. 28 of the Syariah
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 417

A Criminal Offences (Selangor) Enactment 1995. He succeeded in the Federal

Court to have the Syariah penal provision declared unconstitutional on the
ground that the State Legislature of Selangor had no power to enact the law
as “criminal law” is the exclusive domain of the Parliament.
[348] However, what is important to note with regard to the case is that
B
unlike the present case the court in that case was not concerned with the issue
of locus standi. Leave had earlier been granted under art. 4(4) of the
Constitution by my learned brother Abang Iskandar Abang Hashim FCJ
(now PCA) on the following grounds as reported in Iki Putra Mubarrak
v. Kerajaan Negeri Selangor [2020] 6 CLJ 133; [2020] 4 MLJ 213:
C
(i) that leave was required and necessary as the applicant had shown that
his complaint involved the question of the competency of the Selangor
State Legislature on a matter that is in the Federal List; and
(ii) the application was not frivolous or an abuse of the court process as the
D applicant had shown that he had an arguable case.
[349] As can be seen, locus standi was not the basis for the grant of leave.
It was granted on the basis that it was an incompetency challenge falling
under art. 4(4) of the Constitution and that the applicant had an arguable case
and should therefore, be allowed to ventilate before the full court the
E constitutionality and validity of the impugned provision. Obviously, these
are grounds that basically go to the merits of the challenge and not to standing
to sue. It is not clear what the violation of the petitioner’s constitutional right
was in Iki Putra Mubarrak that entitled him to be conferred with standing to
sue.
F [350] Equally important to note with regard to the case is that the only
ground of objection raised by the Selangor Government was that the
petitioner had wrongly named the State Government as respondent for the
reason that the State Government had no jurisdiction to execute, enforce or
prosecute under the Enactment. It was argued that the applicant should have
G cited the Majlis Agama Islam Selangor (MAIS) and/or the Jabatan Agama
Islam Selangor (JAIS) as respondents as they were the authorities concerned
with the actual prosecution of the applicant.
[351] No objection was raised by the Selangor Government that the
applicant had no locus standi to challenge the validity of the impugned
H provision under art. 4(4) of the Constitution. That in my view explains why
His Lordship Abang Iskandar Abang Hashim FCJ (now PCA) did not touch
on the issue of locus standi or the right to bring an action in granting leave
to the applicant. It was never part of the Selangor Government’s case in
opposing the application for leave.
I
[352] At the full hearing, again the issue of locus standi was not raised by the
Selangor Government. There is nothing in the judgment to indicate that the
Selangor Government or any other party to the proceedings objected to the
418 Current Law Journal [2024] 3 CLJ

petitioner’s standing to sue at the full hearing. Assuming such objection was A
raised, the court did not deal with the issue. Anyway, there can be no waiver
of locus standi as it goes to the jurisdiction of the court under art. 128(1)(a)
of the Constitution to hear a constitutional challenge under art. 4(4) of the
Constitution.
B
[353] It cannot therefore be said with absolute certainty that Iki Putra
Mubarrak would have gone to the second stage of the proceedings if the issue
of locus standi had been raised at the leave stage. What appears clear is that
at the full hearing, the parties accepted that the petitioner had the requisite
locus standi to maintain the action against the Selangor Government, hence
the hearing of the case on the merits without the court having to decide on C
the issue of locus standi.
[354] Article 4(4) of the Constitution, which requires leave to be obtained
from a judge of the Federal Court before a petitioner can commence action
to challenge the constitutionality of a law made by Parliament or the State
D
Legislature, is reproduced again below:
(4) Proceedings for a declaration that a law is invalid on the ground
mentioned in Clause (3) (not being proceedings falling within paragraph
(a) or (b) of the Clause) shall not be commenced without the leave of a
judge of the Federal Court; and the Federation shall be entitled to be a
party to any such proceedings brought for the same purpose under E
paragraph (a) or (b) of the Clause.
[355] The point cannot be over emphasised that at the leave stage the court
should refuse locus standi to those who appear to be “busybodies, cranks, and
other mischief-makers”. In the context of an application for leave under
art. 4(4) of the Constitution this requires, as alluded to earlier, a F
determination that there is an arguable violation of the petitioner’s
constitutional rights, that he is genuinely interested, and that he is adversely
affected by the impugned provision or provisions. Only then will the court
be seized of its exclusive original jurisdiction under art. 128(1)(a) of the
Constitution to hear the merits of the case. G

[356] That is key to the question whether leave should or should not be
granted before the case is allowed to proceed on the merits. Of course, as
Lord Scarman also said in IRC, if leave had been granted, the court may
decide that in fact the petitioner had no “sufficient interest” in the subject
matter of the suit which in the context of the present case is whether the H
petitioners have been “adversely affected” by the impugned provisions and
that there has been a violation of their constitutional rights.
[357] What this means is that locus standi, which goes to the Federal Court’s
exclusive original jurisdiction under art. 128(1)(a) of the Constitution and
I
which as a matter of law is distinct and separate from the merits of the case,
must first be established before leave can be granted, and if leave had
improperly been granted, to set it aside at the full hearing.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 419

A [358] There is a good reason why it is necessary for the court to decide on
locus standi before granting leave under art. 4(4) of the Constitution, and that
is to avoid the futile exercise of hearing the case on the merits if in the end
it has to be struck out because it is found that the petitioner has no standing
to sue. The more important reason of course is that only those with legal
B standing to sue have the legal right to commence legal action in court.
[359] With all due respect to my learned brother who granted leave in the
present case, I have to say with regret and in all humility that his grounds
of decision do not show that he had adequately applied his mind to the law
on locus standi and how it works in a constitutional challenge under art. 4(4)
C of the Constitution. What he did was to gloss over the issue of locus standi
in four sentences, as follows:
The main attack on the Applicants’ locus is grounded on the fact that both
Applicants are not affected by the impugned provisions and that the First
Applicant resided in Kuala Lumpur outside the State of Kelantan. The
D learned State LA also distinguished the Federal Court decisions in
Iki Putra and SIS and cited the case of Gerakan challenge of the Hudud
Laws in support of his contention. However as pointed out by the learned
Applicant counsel, the enactment applies here to any Muslims in Kelantan
and there is no requirement that the putative Muslim be a resident in the
State of Kelantan, it is territorial. Which is to say that any Muslim who
E happens to be in the State of Kelantan may be liable and subject to
prosecution under the impugned provisions of the said enactment.
[360] As for Lim Kit Siang, when Abdoolcader SCJ dealt with the issue of
locus standi in his dissenting judgment, he was speaking in the context of an
application for judicial review by a private person in his capacity as a
F member of Parliament, leader of the opposition in the House of
Representatives, a State Assemblyman, a taxpayer, a motorist and a frequent
user of highways and roads in the country to declare invalid the Federal
Government’s decision to award a Government contract to a private
company. He was talking of a “genuine public grievance” as the Government
G contract involved the disbursement of public funds. His concern clearly was
with the financial implications of the Federal Government’s action and not
with the power of a State Legislature to make law, which is a different kettle
of fish altogether.
[361] Obviously therefore, the issue of locus standi that the learned judge was
H dealing with in that case was not germane to the issue of locus standi that the
court is dealing with in the present application, which concerns the exercise
of the Federal Court’s exclusive jurisdiction under art. 128(1)(a) of the
Constitution to hear a constitutional challenge, which it cannot exercise if the
petitioner does not have a right of audience before the court. Given that Lim
I Kit Siang was a case on judicial review under O. 53 of the ROC, it is not
surprising why no reference at all was made to art. 128(1)(a) of the
Constitution which relates to a constitutional challenge under art. 4(4) of the
Constitution.
420 Current Law Journal [2024] 3 CLJ

[362] That is one factor that separates Lim Kit Siang from the present case. A
The other point to take note of is that both Lim Kit Siang and Taman Rimba
are cases on administrative law and not on constitutional law. This is clear
from the dissenting judgment of Abdoolcader SCJ in Lim Kit Siang.
Therefore, both Lim Kit Siang and Taman Rimba are not relevant in
determining whether leave should or should not be granted in a constitutional B
challenge under art. 4(4) of the Constitution.
[363] I am compelled to point this out with no pleasure in mind because
Taman Rimba may be misconstrued as authority for saying that the “broad
and liberal” test applies, without exception, to all public interest litigation,
including in particular to a constitutional challenge under art. 4(4) of the C
Constitution, when it is only to be applied in determining locus standi in
judicial review of administrative action under O. 53 r. 2(4) of the ROC,
which does not require the applicant to first of all show an arguable violation
of his constitutional rights before locus standi can be conferred.
D
[364] There is no doubt that in laying down the “broad and liberal” test, this
court drew inspiration from the minority judgment in Lim Kit Siang. This is
acknowledged in para. [445] of the Taman Rimba judgment where the court
said:
[445] For these reasons we reiterate that the dissenting decision of the
E
minority judges, particularly as reflected in the judgment of Abdoolcader
SCJ, reflects the correct position in law and ought to be followed. His
decision outlines the fundamental requirements that are to be considered
by a court when determining whether or not to grant leave for judicial
review. The cases of Lim Cho Hock and Othman Saat provide a sound
basis for the evolution of the law on standing to sue from that period to F
the present as it presents a rational and coherent development/
progression.
(emphasis added)
[365] I have mentioned art. 128(1)(a) of the Constitution without
reproducing it. The article stipulates as follows:
G
128. (1) The Federal Court shall, to the exclusion of any other court, have
jurisdiction to determine in accordance with any rules of court regulating
the exercise of such jurisdiction:
(a) Any question whether a law made by Parliament or by the
Legislature of a State is invalid on the ground that it makes H
provision with respect to a matter with respect to which Parliament
or, as the case may be, the Legislature of the State has no power
to make laws;
(emphasis added)
[366] The fact that the Federal Court’s jurisdiction under the article is I
constitutionally expressed to be “to the exclusion of any other court” must
be given its due significance and weightage. Being mindful of the gravity of
a challenge to declare a law made by Parliament or the State Legislature
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 421

A invalid, the framers of the Constitution must have intended to set a high
threshold for the grant of leave under art. 4(4), higher than the threshold for
the grant of leave under O. 53 of the ROC, which ordinarily is left to a High
Court Judge to deal with.
[367] The majority in Anwar Ibrahim (1) was therefore right in requiring the
B
applicant in a constitutional challenge to establish an arguable violation of
his constitutional rights in addition to being “adversely affected” and having
a “genuine interest” before he can be conferred with standing to sue. I do not
think these requirements are in conflict with any principle of law already
established by this court on the issue, including the cases of MTUC & Ors and
C Taman Rimba.
[368] With due respect, to relax the rule on locus standi in a constitutional
challenge under art. 4(4) of the Constitution will potentially open the
floodgates for busybodies to invoke the Federal Court’s exclusive original
jurisdiction under art. 128(1)(a) of the Constitution for a collateral purpose.
D
If the exclusivity of the Federal Court’s original jurisdiction under the article
is to mean anything, leave under art. 4(4) must be given sparingly and only
when standing to sue has been established. In Anwar Ibrahim (1), Nallini
Pathmanathan FCJ had also noted at para. [16] of the judgment:
[16] Under the constitutional scheme, therefore, the Federal Court is a
E
court of last resort for all constitutional questions. It is only in a narrow
category of exceptional cases – those expressly stipulated in art. 128(1)
FC – that such questions must be determined by the Federal Court at first
instance.
(emphasis added)
F [369] The learned judge was of course referring to the exclusive original
jurisdiction of the Federal Court to hear challenges on the competency of the
Federal or State Legislatures to make law. In Iki Putra Mubarrak, the learned
Chief Justice made a very pertinent point when Her Ladyship said at
para. [29]:
G
The original jurisdiction of this court is exclusive simply because of the
gravity of the allegation that the relevant Legislature has no power to
make that law. This is clearly suggested by Suffian LP in Ah Thian (supra)
at p. 113 (MLJ), as follows:
The jurisdiction is exclusive to the Federal Court, no other court
H has it. This is to ensure that a law may be declared invalid on this
very serious ground only after full consideration by the highest
court in the land.
[370] Being a prerequisite for the exercise of the court’s exclusive original
jurisdiction under art. 128(1)(a) of the Constitution, locus standi must be given
I its rightful place of importance, not because merits of the case is less
important but because the court cannot properly exercise its exclusive
original jurisdiction under the article over those who have no right to
commence an action under art. 4(4) of the Constitution.
422 Current Law Journal [2024] 3 CLJ

[371] The guiding principle is that the court should refuse locus standi to A
those who appear to be mere busybodies, more so in cases so serious as to
challenge the competency of the highest law-making bodies in the country to
make law. This court must be cautious in admitting challenges under
art. 4(4) of the Constitution to avoid abuse of the locus standi rule. If left
unchecked, it will shake the very foundation of our democratic system of B
Government, which is the separation of powers between the Legislative, the
Executive and the Judiciary, which is a basic structure of the Constitution.
[372] Coming back to Iki Putra Mubarrak, extra care must be taken in dealing
with the case, which was referred to during submissions. It needs to be
re-emphasised that it was not a case on locus standi. In fact, the issue of locus C
standi, and therefore the issue of the court’s exclusive jurisdiction under
art. 128(1)(a) of the Constitution was not even before the court for its
consideration.
[373] There was some discussion on jurisdiction by the court but it was on
D
the jurisdiction of the civil court vis-à-vis the jurisdiction of the Syariah court
and not on the exclusive jurisdiction of the Federal Court under art. 128(1)(a)
of the Constitution vis-à-vis the petitioner’s standing to sue. The fact that the
petitioner in that case was actually prosecuted for attempting to commit the
offence of sodomy under the impugned provision is neither here nor there
and is irrelevant to the issue of locus standi and jurisdiction of the court. E

[374] What is clear is that Iki Putra Mubarrak was decided purely on the
merits and is not authority for saying that prosecution, threat of prosecution,
or regularly participating in the criminalised conduct under the impugned
provisions provide valid basis for conferring locus standi, either at the leave
F
stage or at the full hearing.
[375] In the present case, the first petitioner’s fear of a real risk that she
might be subjected to the investigative powers of the Kelantan Government
in relation to the impugned provisions as averred to in her leave application,
is not only unfounded but is also not a ground to confer on her the locus standi
G
to maintain the present action. In any case, this assertion had been abandoned
in her statutory statement in encl. 26 after leave had been granted. The fact
of the matter is, there is nothing for her and her daughter to fear unless they
regularly participate in the conduct criminalised by the impugned provisions.
[376] In Croome and Leung TC, the two cases cited in Anwar Ibrahim (1), no H
prosecution had been brought against the appellants pursuant to the
impugned provisions but in both cases, the appellants’ conduct of their
personal lives were found to have been “overshadowed in significant
respects” by the presence of the impugned provisions. That was the reason
why the courts in the two cases held that they had locus standi even though
I
the State had not yet invoked legal proceedings to enforce the criminal law
against them.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 423

A [377] The petitioners on the other hand have not shown how their personal
lives as Muslims have been “overshadowed in significant respects” by the
impugned provisions except for the first petitioner’s unfounded fear that the
provisions may be enforced against her and her daughter.
[378] In Datuk Syed Kechik, the applicant was held by the Federal Court to
B
have had locus standi because there was a “real dispute” between him and the
State Government of Sabah when the State Government threatened to expel
him from the State. In the present case, there is no “real dispute” between
the petitioners and the Kelantan Government as there is no threat by the
Government to enforce any of the impugned provisions against them. The
C first petitioner’s fear that the Government may do so does not constitute
“real dispute” between them. Then again, it must be pointed out that Datuk
Syed Kechik is a case on judicial review of administrative action and not a case
on constitutional challenge. A constitutional challenge under art. 4(4) of the
Constitution is a different kettle of fish altogether.
D
[379] It bears repetition that if this court were to accede to the petitioners’
initial argument that fear of enforcement could form the basis for conferring
locus standi, then any Tom, Dick and Harry will invariably be conferred with
the necessary legal standing to commence action under art. 4(4) of the
Constitution to challenge the constitutional validity of the impugned
E provisions.
[380] It is also worth reiterating that the requirement for leave under
art. 4(4) is there to ensure that frivolous or vexatious proceedings for such
declarations are not commenced (Abdul Karim Abdul Ghani). To that I would
add that this court, being the apex court, must not condone any abuse of its
F
process by “phantom busybodies”, “ghostly intermeddlers”, “cranks” and
“other mischief-makers”, descriptions aptly given to these types of litigant
by Lord Scarman in IRC and by Abdoolcader SCJ in Lim Kit Siang.
[381] In Anwar Ibrahim (1), my learned sister Nallini Pathmanathan FCJ
gave “Holocaust-type laws” as extreme examples of “exceptional laws” that
G
would confer locus standi (para. [59]). The word “holocaust” is defined by the
Merriam-Webster English Dictionary as “a mass slaughter of people”, a
genocide. The Concise Oxford English Dictionary (11th edn, Revised) defines
it to mean “destruction or slaughter on a mass scale”. It refers to a deliberate
and systematic extermination of a particular ethnic, racial or religious group.
H
[382] To put the matter in perspective, the word “holocaust” is associated
with the killing of millions of Jews by the Nazis before and during the second
world war, which included herding them into gas chambers in order to kill
them. If this sounds graphic, that is what it is. From that perspective, there
is absolutely no comparison with the impugned provisions. The provisions
I
are nowhere close to holocaust-type laws by any wild stretch of the
imagination.
424 Current Law Journal [2024] 3 CLJ

[383] In the first place, the impugned provisions are only applicable to A
Muslims and not to non-Muslims. Secondly, the question of a “mass
slaughter of people” specifically targeted against a minority group does not
arise. The petitioners are not even from a minority group. Thirdly, there is
nothing exceptional about the impugned provisions. On this score, the
petitioners’ case on locus standi must also fail. B

[384] The next question to consider is whether this court has the power to
set aside the leave order that has already been granted to the petitioners. The
contention by Datuk Malik Imtiaz for the petitioners is that since the locus
standi issue had been dealt with, argued and finally dismissed by Vernon Ong
FCJ at the leave stage, this court cannot re-visit the issue as it is res judicata. C

[385] With due respect to learned counsel, the argument flies in the face of
Wong Shee Kai v. Government Of Malaysia [2022] 10 CLJ 1; [2022] 6 MLJ
102, a very recent decision of this court. In that case, leave to appeal had
been granted to the petitioner. The question before the court was whether the
D
court was bound to hear the petition since leave had been granted, or whether
it could set aside the leave order and refuse to hear the petition. As reported
in paras. (2) and (3) of the headnote to the case, it was held, inter alia as
follows:
Held (2) Although leave had been granted and the petition had been filed,
E
it was still open to the court, in order to guard its exclusive original
jurisdiction from abuse, to re-visit the grant of leave and to set it aside
if it found that leave ought not to have been granted in the first place.
The grant of leave could not confer jurisdiction where there is none in
the first place. Leave could only be granted if there is jurisdiction, and so
the grant of leave was not capable of becoming the basis for jurisdiction. F
Held (3) If it is found at any stage before, during or after the hearing of
the merits of a petition that the initial grant of leave was bad for want
of jurisdiction, this court is entitled, after hearing the parties, to set aside
the leave order previously granted. And following such setting aside, the
petition having no leg to stand on has to be struck out as a matter of
course. The power to set aside the previously-granted leave order is within G
the ambit of the inherent powers of this court. If at all a statutory
provision is required for it, it is r. 137 of the Rules of the Federal Court
1995.
[386] The issue therefore is one of jurisdiction so that leave that has been
granted without jurisdiction is liable to be set aside. In Wong Shee Kai, the H
court struck out the petition not because the applicant had no locus standi to
maintain the action but because the court had no jurisdiction to hear the
petition as the challenge was an inconsistency challenge and not an
incompetency challenge. As the learned Chief Justice who led the five-
member panel eruditely surmised in her judgment, the petition “disclosed an I
inconsistency challenge poorly disguised as an incompetency challenge”.
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 425

A [387] It was held that, being an inconsistency challenge, the petition should
have been raised in the High Court and not directly in the Federal Court as
an inconsistency challenge was beyond the jurisdiction of the Federal Court,
whose exclusive jurisdiction under art. 128(1)(a) of the Constitution was to
hear an incompetency challenge and not an inconsistency challenge.
B
[388] As in Wong Shee Kai, this court in the present case is dealing with
art. 4(3) and (4) of the Constitution which are reproduced again below for
ease of reference:
(3) The validity of any law made by Parliament or the Legislature of any
State shall not be questioned on the ground that it makes provision with
C respect to any matter with respect to which Parliament or, as the case may
be, the Legislature of the State has no power to make laws, except in
proceedings for a declaration that the law is invalid on that ground or:
(a) if the law is made by Parliament, in proceedings between the
Federation and one or more States;
D
(b) if the law was made by the Legislature of a State, in proceedings
between the Federation and that State.
(4) Proceedings for a declaration that a law is invalid on the ground
mentioned in Clause (3) (not being proceedings falling within paragraph
(a) or (b) of the Clause) shall not be commenced without the leave of a
E judge of the Federal Court; and the Federation shall be entitled to be a
party to any such proceedings brought for the same purpose under
paragraph (a) or (b) of the Clause.
[389] I must highlight in passing that by virtue of art. 4(4) above, the Federal
Government shall be entitled to be a party to any such proceedings but for
F some unexplained reasons it was not made a party to the present proceedings,
nor did it apply to intervene in the action. At the hearing, the State Legal
Advisor who represented the State Government of Kelantan but who is also
an officer of the Federal Government was asked if the Federal Government
takes the same stand as the stand taken by the State Government of Kelantan.
G His reply was that it does not take the same stand.
[390] Obviously, the learned State Legal Advisor did not represent the
Federal Government in this action although he is an officer of the Federal
Government attached to the Attorney-General’s Chambers. In his capacity
as the State Legal Advisor of Kelantan, he had made the Kelantan
H Government’s position clear that the impugned provisions are valid and not
unconstitutional, which is the flip side of the Federal Government’s stand as
he himself confirmed in answer to my question at the hearing. This
conundrum in the role of the State Legal Advisor in a Federal set up where
the State Government is in the opposition needs to be tidied up.
I
426 Current Law Journal [2024] 3 CLJ

[391] It would have been of great assistance to the court if the Federal A
Government had been a party to the action so that the court could benefit
from the Federal Government’s input on such an important constitutional
issue as the competency of the Kelantan State Legislature to enact the
impugned provisions. With due respect, taking a neutral stand or no stand
at all is not a viable option as it involves the power of the State Legislature B
vis-à-vis the legislative power of Parliament to make law. As it is, the court
does not have the benefit of the Federal Government’s side of the argument.
[392] Be that as it may, the ratio decidendi of Wong Shee Kai is unwaveringly
clear – that a leave order that has already been granted can be set aside if it
is found that it should not have been granted in the first place for want of C
jurisdiction. Put another way, the grant of leave cannot confer jurisdiction
where there is none in the first place, and the court has no jurisdiction where
there is no standing to sue.
[393] No authority has been provided to this court to say that even where
D
the petitioner has no locus standi to maintain the action, this court is
nevertheless seized of its exclusive original jurisdiction under art. 128(1)(a)
of the Constitution to hear and to decide on the merits of the petition. As for
myself, I do not think that is a tenable proposition of law as locus standi is
a condition precedent to the exercise of the court’s jurisdiction under
art. 128(1)(a) of the Constitution. I therefore reject counsel’s argument that E
once leave to appeal has been granted, the issue of locus standi is res judicata
and cannot be re-visited. The argument must fail.
[394] In so far as the issue of jurisdiction is concerned, the position of the
petitioners in the present case is no better than the position of the petitioner
F
in Wong Shee Kai. While their incompetency challenge is well within the
exclusive original jurisdiction of the Federal Court under art. 128(1)(a) of the
Constitution, their lack of locus standi takes that exclusive original
jurisdiction away from the court.
[395] In both Wong Shee Kai and in the present case, this court had/has no
G
jurisdiction to hear the applications, in the former because the court had no
exclusive jurisdiction to hear an inconsistency challenge and in the present
case because the court has no exclusive jurisdiction to hear an application by
petitioners who have no right to appear before it.
[396] In a sense the petitioners’ position is worse than that of Wong Shee Kai H
who could at least bring his inconsistency challenge in the High Court
although not in the Federal Court. Unlike the petitioners, he was not
impeded by lack of locus standi. His petition was struck out simply because
he filed his application in the wrong court, and not because he lacked
locus standi.
I
 Nik Elin Zurina Nik Abdul Rashid & Anor
[2024] 3 CLJ v. Kerajaan Negeri Kelantan 427

A [397] The petitioners on the other hand filed their case in the right court but
without the necessary locus standi or standing to sue, their application has no
leg to stand on. Their petition must therefore suffer the same fate as the fate
that befell Wong Shee Kai but for a different reason.
[398] In the circumstances and for all the reasons given, encl. 68 is allowed.
B
The leave order granted by Vernon Ong FCJ on 30 September 2022 is set
aside and encl. 26 is struck out with no order as to costs.