150 Malayan Law Journal [2024] 2 MLJ

Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan A

Negeri Kelantan

FEDERAL COURT (PUTRAJAYA) — PETITION NO BKA-2–05 OF B

2022(D)
TENGKU MAIMUN CHIEF JUSTICE, ABANG ISKANDAR PCA,
MOHAMAD ZABIDIN CJ (MALAYA), ABDUL RAHMAN SEBLI CJ
(SABAH AND SARAWAK), NALLINI PATHMANATHAN, MARY
LIM, HARMINDAR SINGH, NORDIN HASSAN AND ABU BAKAR C
JAIS FCJJ
9 FEBRUARY 2024

Constitutional Law — Legislature — Legislative competence — State

D
Legislature (‘SL’) created offences by Muslims against precepts of Islam and provided
for their punishment in Syariah Criminal Code — Petitioners sought declaration
from Federal Court that SL had no power to create the offences as they concerned
matters which fell under Federal Legislative List under Ninth Schedule of Federal
Constitution (‘FC’) or were generally dealt with under Federal criminal law
E
— Whether offences created by SL were unconstitutional and void under art 4(1)
of FC

Civil Procedure — Locus standi — Action by private citizens — Petitioners

sought declaration that laws created by State Legislature (‘SL’) were F
unconstitutional and void because subject-matter of the laws rightly belonged to
Parliament’s field of legislation — Whether fact that the laws had come into
existence was sufficient reason in itself for anyone to apply to declare them
unconstitutional and void — Whether petitioners had to show they had locus
standi by showing an arguable violation of their constitutional rights, that they were G
‘genuinely interested’ and that they were adversely affected by the laws — Whether
failure to establish locus standi denied Federal Court of jurisdiction under
art 128(1)(a) of FC to hear and determine the petition — Whether leave to file
petition was properly granted or had to be set aside — Whether petition was an
abuse of court’s process H

The appellants (‘petitioners’) herein sought a declaration from the Federal

Court that ss 11, 13, 14, 16, 17, 30, 31, 34, 36, 37(1)(b), 39-45, 47 and 48
(‘the impugned sections’) of the Kelantan Syariah Criminal Code (I)
Enactment 2019 (‘the 2019 Enactment’) were invalid on the ground that they I
provided for matters with respect to which the Kelantan State Legislature
(‘KSL’) had no power to make laws and that the impugned sections were
accordingly void under art 4(1) of the Federal Constitution (‘the FC’). The
petitioners had earlier been granted leave by a single judge of the Federal Court
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 151

A under art 4(4) of the FC to file their petition. The petitioners’ complaint was
that whilst item 1 of the State List in the Ninth Schedule of the FC allowed the
KSL to make laws with respect to ‘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’, the impugned sections were
B beyond the legislative competence of the KSL to make because they concerned
matters which either clearly fell under the Federal List or were generally dealt
with by Federal criminal law. A main objection of the respondent was that leave
to file the petition was wrongly granted and should be set aside because the
petitioners had failed to show that they had the requisite locus standi to
C petition the court. The respondent argued that the petitioners were busybodies
who had not shown the existence of any real dispute or controversy between
themselves and the respondent or in what way the impugned sections adversely
affected them. In response, the petitioners argued that they had a valid basis to
challenge the impugned sections because they had family and properties in
D Kelantan and planned to reside there in future and that there was always the
possibility that any of the impugned sections could be used against them.

Held, by majority, granting the declaration sought with the exception of ss 13

and 30 of the 2019 Enactment which were valid and constitutional:
E
(1) (per Tengku Maimun Chief Justice, majority) The petitioners had
locus standi to maintain the instant petition which was neither academic
nor abstract. In Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan
Trellises & Ors and other appeals [2023] 3 MLJ 829 (‘Taman Rimba’), the
F Federal Court endorsed the minority judgment of Eusoffe Abdoolcader
SCJ in Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (‘Lim
Kit Siang’) to hold that locus standi ought to be relaxed as much as
possible to allow any public-spirited person to file a public law suit
provided that he had some interest in the matter. Although Taman Rimba
G concerned an administrative judicial review of the decision of a public
body, the court was of the view that in a constitutional judicial review,
such as the present case, locus standi must be adjudged on principles even
broader than those that were applied in Taman Rimba (see paras 21–24).
(2) (per Tengku Maimun Chief Justice, majority) Article 4(1) of the
H Federal Constitution (‘FC’) declared that any law passed after Merdeka
Day which was inconsistent with the FC shall, to the extent of the
inconsistency, be void. The fact that a law existed by virtue of it having
been passed was a factual situation which allowed for that law to be
challenged. And if that law was inconsistent with the FC, art 4(1)
I dictated that the said law was invalid. The language in art 4(1) did not
suggest that the courts must pause on deciding the validity of that law
until the ‘correct person’ showed up before them to challenge that law or
that the courts should now filter the litigants that came before them
seeking to challenge the constitutional validity of legal provisions for the
152 Malayan Law Journal [2024] 2 MLJ

reason that the question of validity came second to the personality before A
the court (see paras 25–26).
(3) (per Tengku Maimun Chief Justice, majority) The fact that legislation
had been passed created a factual circumstance in which it could be
challenged. Article 4(1), which formed the substantive constitutional B
basis for all constitutional judicial review cases, did not discriminate
between the circumstances and situations in which such challenges could
be brought or the categories of persons who could bring them.
‘Incompetency challenges’, such as the one in the instant case, were a
specific kind of ‘inconsistency challenge’, which in addition to being C
governed by art 4(1) were also governed by arts 4(3) and (4) of the FC.
Nothing in arts 4(3) and (4) suggested that anyone who sought 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 challenged were invalid D
on grounds stated in art 4(3)) (see paras 29–30).
(4) (per Tengku Maimun Chief Justice, majority) All citizens (and in some
cases all persons) were entitled to rely on the FC for protection and to
approach the Federal Court for competency challenge under arts 4(4) E
and 128 of the FC. The passing of a law (whether Federal or State) was a
legislative act or conduct which always remained subject to judicial
scrutiny in line with the principle of separation of powers. There was no
constitutional basis to limit the types of persons or category of persons
who could, at the very minimum, challenge the existence of the law as a F
separate constitutional cause of action in addition to cases where persons
affected by the exercise of such powers against them could also challenge
the validity of that same law (see para 31).
(5) (per Tengku Maimun Chief Justice, majority) The respondent
contended that the petitioners had not named the correct party as G
respondent in this proceeding and that this was fatal to the petition. The
court, however, found that naming only the respondent in the present
case was sufficient to sustain the petition. Since art 4(3)(a) and (b) of the
FC mandatorily required the State (and this logically meant the
Government of that State) to be a party — and in all other cases H
mentioned in art 4(4) of the FC the State was entitled to be a party — it
meant that irrespective of any other executive bodies falling within the
Federation or that State’s jurisdiction, the Government of that State was
a proper party to be sued. While for prudence and completeness, the
Legislature of the State concerned should be made a party to the I
proceedings, the fact that it was not made a party was not fatal to the
petition. At the very minimum, it was sufficient if the Government of the
State was named as respondent. After all, any executive bodies in the State
and any legislative bodies of that State including its Legislature were
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 153

A organs of the Government of the State in question. With these bodies at

its disposal, the State was therefore in a position to defend the validity of
any law challenged on the ground that the State’s Legislature had no
power to make it (see paras 33, 46 & 49–48).

B (6) (per Tengku Maimun Chief Justice, majority) In determining the

constitutionality of the impugned sections, the court adopted the
following approach: (a) If the impugned section was an offence against
the ‘precepts of Islam’, and (i) in pith and substance related to any matter
specifically referenced in item 1 of the State List or to any other relevant
C provisions in the FC, and the law was applicable only to persons
professing the religion of Islam, or (ii) it was a ‘purely religious offence’
relating to: (A) aqidah; and (B) the sanctity of the Islamic religion or its
institutions or (C) one purely relating to morality in Islam, then it was an
law the State Legislature could validly enact; (b) if the impugned section
D was in pith and substance a ‘purely religious offence’ which could not be
referenced to any matter under the Federal List and it concerned only the
Muslims in this country (eg if someone claimed that he was a Prophet),
then it was within the State Legislature’s power to make that law; (c) if the
impugned section was a purely religious offence, but in pith and
E substance it fell under matters of criminal law in the Federal List or under
general criminal law which involved an element of public order, safety,
health, security, morality etc, of general application, then it would be
caught by the preclusion clause in item 1 of the State List. Examples of
such offences were murder, theft, robbery and corruption, which could
F be considered as offences against the precepts of Islam but in pith and
substance they fell under the criminal law of general application to
everyone in this country (see para 121).
(7) (per Tengku Maimun Chief Justice, majority) Applying the above
principles to the impugned sections, this court found that the KSL, and
G hence the respondent, had the power to enact s 13 and s 30 of the 2019
Enactment and that those two sections were, therefore, not
unconstitutional. Section 13 made it an offence for a person professing
the religion of Islam to sell, give or surrender his child or children under
his custody to either a non-Muslim or to a morally reprehensible Muslim.
H Section 13 did not appear to be targeted at child welfare or at curbing
child trafficking, as contended by the petitioners. The States had power
to legislate on Islamic personal law and family law and s 13 came within
that power. In pith and substance, s 13 aimed at preventing the
propagation of faiths other than Islam (including the improper practices
I of Islam) to Muslim children. This was within the power of the State by
virtue of item 1 of the State List as well as art 11(4) of the FC. The two
last-mentioned provisions also empowered the KSL to validly enact s 30
of the 2019 Enactment which made it an offence for any person to
willfully utter or disseminate words contrary to the Hukum Syarak and
154 Malayan Law Journal [2024] 2 MLJ

likely to cause breach of the peace in any place. The court was of the view A
that s 30 did not per se deal with the preservation of peace and order or
religious harmony (which was a matter of general criminal nature) but
was a purely religious offence aimed at restricting the propagation of false
doctrines and teachings by persons professing the religion of Islam to
others professing the same faith (see paras 135–143 & 158–169). B

(8) (per Tengku Maimun Chief Justice, majority) A close scrutiny of the
remaining impugned sections revealed that the KSL, and hence the
respondent, had no power to make them and they were accordingly
unconstitutional because they were not purely religious offences or C
matters which fell within item 1 of the State List or any other provision in
the FC with respect to which the State Legislature was entitled to legislate
but came within matters with respect to which Parliament was entitled to
legislate. These sections were: s 11 (Destroying or defiling place of
worship), s 14 (Sodomy), s 16 (Sexual intercourse with corpse), s 17 D
(Sexual intercourse with non-human), s 47 (Incest), s 31 (Sexual
harassment), s, 34 (Possessing false document, giving false evidence,
information or statement), s 36 (Anything intoxicating), s 37 (1)(b)
(Organising, providing place for or permitting any gambling activity in
any premises), s 39 (Reducing scale, measurement and weight), s 40 E
(Executing transactions contrary to Hukum Syarak), s 41 (Executing
transactions via usury, etc), s 42 (Abuse of halal label and connotation),
s 43 (Offering or providing vice services), s 44 (Preparatory act of offering
or providing vice services), s 45 (Preparatory act of vice) and s 48
(Muncikari) (see paras 125–238). F
(9) (per Abdul Rahman Sebli CJ (Sabah and Sarawak), dissenting) The
petitioners had no locus standi to maintain the petition and consequently
the court had no basis in law to exercise its exclusive original jurisdiction
under art 128(1)(a) of the FC to hear and decide the merits of the G
petition. The court could not assume jurisdiction where there was none.
The petition was an abuse of the court’s process and ought to be struck
out. Leave should not have been granted in the first place and it had to be
set aside. The grounds of decision of the judge who granted the leave did
not show that he had adequately applied his mind to the law on locus H
standi and how it worked in a constitutional challenge under art 4(4) of
the FC (see paras 267 & 359).
(10)(per Abdul Rahman Sebli CJ (Sabah and Sarawak), dissenting) The
court had no jurisdiction to hear the petition as the petitioners had no
right to appear before it. No authority was provided to the court to show I
that even where the petitioner had no locus standi to maintain the action,
the court nevertheless had the jurisdiction under art 128(1)(a) of the FC
to hear and decide the merits of the petition. This was not a tenable
proposition of law as locus standi was a condition precedent to the
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 155

A exercise of the court’s jurisdiction under art 128(1)(a). The grant of leave
could not confer jurisdiction when there was none in the first place, and
the court had no jurisdiction when there was no standing to sue. The
petitioners had filed their case in the right court but without the
necessary locus standi or standing to sue, their application had no leg to
B stand on (see paras 392–393, 395 & 397).
(11) (per Abdul Rahman Sebli CJ (Sabah and Sarawak), dissenting)
Whatever might be the test to determine locus standi in a constitutional
challenge, be it liberal or restrictive, the test laid down by the majority in
C Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4
MLJ 133 was the correct test which, importantly, had not been held to be
wrong by any subsequent decision of the court. The setting aside of the
majority’s decision by a subsequent review panel of the court for breach of
the audi alteram partem rule did not in any way render the majority’s
D opinion on locus standi irrelevant. Therefore, the law on locus standi laid
down by the majority in that case was the one to be applied when
determining whether a petitioner had the requisite standing to sue in a
challenge under art 4(4) of the FC — and that was whether the petitioner
had established an arguable violation of his constitutional rights in
E addition to being ‘adversely affected’ and having a ‘genuine interest’ in
the subject-matter of the suit (see paras 309, 314, 324, 326 & 367).
(12) (per Abdul Rahman Sebli CJ (Sabah and Sarawak), dissenting) To
establish locus standi, the petitioners in the present case had to first of all
F show that their challenge to the constitutionality of the impugned
sections did not exist in a factual vacuum and that there was an arguable
violation of their constitutional rights. Only then could a real and actual
controversy between the petitioners and the respondent arise for the
court’s determination in the exercise of its exclusive original jurisdiction
G under art 128(1)(a) of the FC. The petitioners had completely failed to
clear this hurdle. Their contention that the State Legislature had no
competency to enact the impugned sections only went to the substantive
merits of their challenge and not to the issue of their locus standi (see
paras 327–328).
H (13)(per Abdul Rahman Sebli CJ (Sabah and Sarawak), dissenting) 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 sections (as averred in her leave application) was not only
unfounded but was not a ground to confer on her locus standi to
I maintain the petition. In any case, the assertion was abandoned in her
statutory statement filed in support of the petition after leave was
granted. The fact of the matter was that there was nothing for the
petitioners to fear unless they regularly participated in the conduct
criminalised by the impugned sections. The petitioners had not shown
156 Malayan Law Journal [2024] 2 MLJ

how their personal lives had been ‘overshadowed in significant respects’ A

by the impugned sections (see paras 375–377)
(14)(per Abdul Rahman Sebli CJ (Sabah and Sarawak), dissenting) The
requirement for leave under art 4(4) of the FC was to ensure that
frivolous or vexatious proceedings for declarations were not commenced B
by ‘busybodies, cranks and other mischief-makers’. The court should
refuse locus standi to such persons at the leave stage. An application for
leave under art 4(4) of the FC required a determination that there was an
arguable violation of the petitioner’s constitutional rights, that he was
genuinely interested and that he was adversely affected by the impugned C
provision or provisions. Only then would the court be seized of its
exclusive original jurisdiction under art 128(1)(a) of the FC to hear the
merits of the case. Locus standi must be established first before leave
could be granted. And if leave had been improperly granted, it must be
set aside at the full hearing (see paras 355, 357 & 380). D

[Bahasa Malaysia summary

Perayu-perayu (‘pempetisyen-pempetisyen’) di sini memohon pengisytiharan
daripada Mahkamah Persekutuan bahawa ss 11, 13, 14, 16, 17, 30, 31, 34, 36,
37(1)(b), 39-45, 47 dan 48 (‘seksyen-seksyen yang dipertikaikan’) Enakmen E
Kanun Jenayah Syariah (I) Kelantan 2019 (‘Enakmen 2019’) adalah tidak sah
atas alasan ia memperuntukkan perkara-perkara yang mana Dewan Undangan
Negeri Kelantan (‘DUNK’) tidak mempunyai kuasa untuk membuat
undang-undang dan seksyen-sksyen yang dipertikaikan tersebut adalah tidak
sah di bawah perkara 4(1) Perlembagaan Persekutuan (‘PP’). F
Pempetisyen-pempetisyen sebelum ini telah diberikan kebenaran oleh seorang
hakim Mahkamah Persekutuan di bawah perkara 4(4) PP untuk memfailkan
petisyen mereka. Aduan pempetisyen-pempetisyen adalah bahawa walaupun
Butiran 1 Senarai Negeri dalam Jadual Kesembilan PP membenarkan DUNK
membuat undang-undang berkenaan dengan ‘pewujudan dan penghukuman G
kesalahan yang dilakukan oleh orang yang menganut agama Islam terhadap
perintah agama itu, kecuali berkenaan dengan perkara yang termasuk dalam
Senarai Persekutuan’, seksyen-seksyen yang dipertikaikan tersebut berada di
luar kompetensi perundangan DUNK untuk membuat kerana ia melibatkan
perkara-perkara yang sama ada jelas berada di bawah Senarai Persekutuan atau H
secara amnya ditangani oleh undang-undang jenayah Persekutuan. Bantahan
utama responden ialah kebenaran untuk memfailkan petisyen tersebut telah
diberikan secara salah dan harus diketepikan kerana pempetisyen-pempetisyen
gagal menunjukkan bahawa mereka mempunyai locus standi yang diperlukan
untuk membuat petisyen kepada mahkamah. Responden berhujah bahawa I
pempetisyen-pempetisyen adalah penyibuk yang tidak menunjukkan
wujudnya apa-apa pertikaian atau kontroversi sebenar antara mereka dan
responden atau bagaimana seksyen-seksyen yang dipertikaikan tersebut
menjejaskan mereka. Sebagai tindak balas, pempetisyen-pempetisyen berhujah
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 157

A bahawa mereka mempunyai asas yang sah untuk mencabar seksyen-seksyen

yang dipertikaikan tersebut kerana mereka mempunyai keluarga dan harta
tanah di Kelantan dan merancang untuk menetap di sana pada masa hadapan
dan sentiasa ada kemungkinan bahawa mana-mana seksyen-seksyen yang
dipertikaikan tersebut boleh digunakan terhadap mereka.
B
Diputuskan, melalui majoriti, memberikan pengisytiharan yang dipohon
dengan pengecualian ss 13 dan 30 Enakmen 2019 yang sah dan
berperlembagaan:
C (1) (oleh Tengku Maimun Ketua Hakim Negara, majoriti)
Pempetisyen-pempetisyen mempunyai locus standi untuk mengekalkan
petisyen semasa yang bukan akademik mahupun abstrak. Dalam Datuk
Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other
appeals [2023] 3 MLJ 829 (‘Taman Rimba’), Mahkamah Persekutuan
D mengesahkan penghakiman minoriti Eusoffe Abdoolcader HMA dalam
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (‘Lim Kit
Siang’) untuk memutuskan bahawa locus standi sepatutnya
dilonggarkan seboleh-bolehnya untuk membenarkan mana-mana orang
yang bersemangat awam memfailkan saman undang-undang awam
E dengan syarat dia mempunyai kepentingan dalam perkara tersebut.
Walaupun Taman Rimba melibatkan semakan kehakiman pentadbiran
terhadap keputusan badan awam, Mahkamah ini berpendapat bahawa
dalam semakan kehakiman perlembagaan, seperti kes semasa, locus
standi mesti dihakimi berdasarkan prinsip-prinsip yang lebih luas
F daripada yang digunakan dalam Taman Rimba (lihat perenggan 21–24).
(2) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Perkara 4(1)
Perlembagaan Persekutuan (‘PP’) mengisytiharkan bahawa apa-apa
undang-undang yang diluluskan selepas Hari Merdeka yang tidak selaras
G dengan PP adalah tidak sah setakat ketidakselarasan itu. Hakikat bahawa
undang-undang wujud kerana ia telah diluluskan adalah keadaan fakta
yang membolehkan undang-undang tersebut dicabar. Dan jika
undang-undang tersebut tidak selaras dengan PP, perkara 4(1)
menyatakan bahawa undang-undang tersebut adalah tidak sah. Bahasa
H dalam perkara 4(1) tidak mencadangkan bahawa mahkamah mesti
berhenti seketika untuk memutuskan kesahihan undang-undang
tersebut sehingga ‘orang yang betul’ muncul di hadapan mereka untuk
mencabar undang-undang tersebut atau bahawa mahkamah kini harus
menapis litigan-litigan yang datang di hadapan mereka yang ingin
I mencabar kesahihan perlembagaan bagi peruntukan-peruntukan
undang-undang atas alasan bahawa persoalan kesahihan menduduki
tempat kedua kepada personaliti di hadapan mahkamah (lihat perenggan
25–26).
(3) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Hakikat
158 Malayan Law Journal [2024] 2 MLJ

bahawa undang-undang telah diluluskan mewujudkan keadaan fakta di A

mana ia boleh dicabar. Perkara 4(1), yang membentuk asas perlembagaan
substantif bagi semua kes semakan kehakiman perlembagaan, tidak
mendiskriminasi antara keadaan dan situasi di mana cabaran sedemikian
boleh dibawa atau kategori orang yang boleh membawanya. ‘Cabaran
ketakkompetenan’, seperti dalam kes semasa, adalah sejenis ‘cabaran B
ketakkonsistenan’ yang khusus, yang mana selain dikawal oleh perkara
4(1) juga dikawal oleh perkara 4(3) dan (4) PP. Tiada apa-apa dalam
perkara 4(3) dan (4) mencadangkan bahawa sesiapa yang cuba mencabar
keperlembagaan peruntukan undang-undang mesti terlebih dahulu
membuktikan alasannya sendiri untuk membawa cabaran tersebut C
(selain daripada perlu mengemukakan hujah tentang mengapa
peruntukan-peruntukan yang mereka cabar adalah tidak sah atas
alasan-alasan yang dinyatakan dalam perkara 4(3)) (lihat perenggan
29–30).
D
(4) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Semua
warganegara (dan dalam sesetengah kes semua orang) berhak untuk
bergantung kepada PP untuk perlindungan dan untuk datang kepada
Mahkamah Persekutuan untuk cabaran kekompetenan di bawah perkara
4(4) dan 128 PP. Pelulusan undang-undang (sama ada Persekutuan atau E
Negeri) adalah tindakan atau kelakuan perundangan yang sentiasa
tertakluk kepada penelitian kehakiman selaras dengan prinsip
pengasingan kuasa. Tiada asas perlembagaan untuk mengehadkan jenis
orang atau kategori orang yang boleh, sekurang-kurangnya, mencabar
kewujudan undang-undang sebagai kausa tindakan perlembagaan yang F
berasingan di samping kes di mana orang-orang yang terjejas oleh
penggunaan kuasa tersebut terhadap mereka juga boleh mencabar
kesahihan undang-undang yang sama (lihat perenggan 31).
(5) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Responden
berhujah bahawa pempetisyen-pempetisyen tidak menamakan pihak G
yang betul sebagai responden dalam prosiding ini dan ini menjejaskan
petisyen tersebut. Mahkamah bagaimanapun mendapati bahawa hanya
menamakan responden dalam kes ini adalah mencukupi untuk
mengekalkan petisyen tersebut. Oleh kerana perkara 4(3)(a) dan (b) PP
secara mandatori menghendaki Negeri (dan ini secara logiknya H
bermakna Kerajaan Negeri tersebut) untuk menjadi pihak — dan dalam
semua kes lain yang disebut dalam perkara 4(4) PP Negeri berhak
menjadi pihak — ini bermakna tanpa mengira mana-mana badan
eksekutif lain yang termasuk dalam bidang kuasa Persekutuan atau
Negeri tersebut, Kerajaan Negeri tersebut adalah pihak yang wajar untuk I
disaman. Manakala untuk kehematan dan kesempurnaan, Badan
Perundangan Negeri yang berkenaan harus dijadikan sebagai pihak
dalam prosiding tersebut, hakikat bahawa ia tidak dijadikan pihak tidak
menjejaskan petisyen tersebut. Sekurang-kurangnya, adalah memadai
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 159

A sekiranya Kerajaan Negeri dinamakan sebagai responden. Lagipun,

mana-mana badan eksekutif di Negeri dan mana-mana badan
perundangan Negeri tersebut termasuk Badan Perundangannya adalah
organ Kerajaan Negeri berkenaan. Dengan badan-badan ini berada di
bawah kawalannya, Negeri berada dalam kedudukan untuk
B mempertahankan kesahihan mana-mana undang-undang yang dicabar
atas alasan bahawa Badan Perundangan Negeri tidak mempunyai kuasa
untuk membuatnya (lihat perenggan 33, 46 & 48–49).
(6) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Dalam
C menentukan keperlembagaan seksyen-seksyen yang dipertikaikan
tersebut, mahkamah ini menggunakan pendekatan berikut: (a) Jika
seksyen-seksyen yang dipertikaikan tersebut adalah satu kesalahan
terhadap ‘perintah Islam’, dan (i) dalam inti patinya berkaitan dengan
apa-apa perkara yang dirujuk secara khusus dalam Butiran 1 Senarai
D Negeri atau kepada mana-mana peruntukan lain yang berkaitan dalam
PP, dan undang-undang tersebut hanya terpakai kepada orang yang
menganut agama Islam, atau (ii) ia adalah ‘kesalahan agama semata-mata’
yang berkaitan dengan (A) aqidah (B) kesucian agama Islam atau
institusinya atau (C) kesalahan semata-mata berkaitan dengan moral
E dalam Islam, maka ia adalah undang-undang yang boleh digubal dengan
sah oleh Dewan Undangan Negeri; (b) jika seksyen-seksyen yang
dipertikaikan tersebut pada inti patinya adalah ‘kesalahan agama
semata-mata’ yang tidak boleh dirujuk kepada mana-mana perkara di
bawah Senarai Persekutuan dan ia hanya melibatkan orang Islam di
F negara ini (cth. jika seseorang mendakwa bahawa dia seorang Nabi),
maka ia adalah dalam kuasa Badan Perundangan Negeri untuk membuat
undang-undang tersebut; (c) jika seksyen-seksyen yang dipertikaikan
tersebut adalah kesalahan agama semata-mata, tetapi dalam inti patinya
ia termasuk di bawah perkara undang-undang jenayah dalam Senarai
G Persekutuan atau di bawah undang-undang jenayah am yang melibatkan
unsur ketenteraman awam, keselamatan, kesihatan, keselamatan, moral
dsb., untuk penggunaan umum, maka ia akan dihalang oleh klausa
pengasingan dalam Butiran 1 Senarai Negeri. Contoh-contoh kesalahan
tersebut adalah pembunuhan, kecurian, rompakan dan rasuah, yang
H boleh dianggap sebagai kesalahan terhadap ajaran Islam tetapi pada
dasarnya ia adalah di bawah undang-undang jenayah yang digunakan
secara am kepada semua orang di negara ini (lihat perenggan 121).
(7) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Menggunakan
prinsip-prinsip di atas kepada seksyen-seksyen yang dipertikaikan,
I mahkamah ini mendapati bahawa DUNK, dan oleh itu responden,
mempunyai kuasa untuk menggubal s 13 dan s 30 Enakmen 2019 dan
bahawa kedua-dua seksyen tersebut, oleh itu, tidak bertentangan dengan
perlembagaan. Seksyen 13 menjadikannya satu kesalahan bagi seseorang
yang menganut agama Islam untuk menjual, memberikan atau
160 Malayan Law Journal [2024] 2 MLJ

menyerahkan anak atau anak-anak di bawah jagaannya sama ada kepada A

bukan Islam atau kepada orang Islam yang keji akhlaknya. Seksyen 13
nampaknya tidak menyasarkan kebajikan kanak-kanak atau
membendung pemerdagangan kanak-kanak, seperti yang dipertikaikan
oleh pempetisyen-pempetisyen. Negeri-negeri mempunyai kuasa untuk
menggubal undang-undang peribadi Islam dan undang-undang keluarga B
dan s 13 termasuk dalam kuasa tersebut. Secara inti patinya, s 13
bertujuan untuk menghalang penyebaran agama selain Islam (termasuk
amalan Islam yang tidak wajar) kepada kanak-kanak Islam. Ini adalah
dalam kuasa Negeri berdasarkan Butiran 1 Senarai Negeri serta perkara
C
11(4) PP. Kedua-dua peruntukan yang disebut sebelum ini juga memberi
kuasa kepada DUNK untuk menggubal s 30 Enakmen 2019 secara sah
yang menjadikannya satu kesalahan bagi mana-mana orang dengan
sengaja mengeluarkan atau menyebarkan perkataan yang bertentangan
dengan hukum syarak dan yang mungkin boleh memecahkan keamanan D
di mana-mana tempat. Mahkamah berpandangan bahawa s 30 tidak
semata-mata memperkatakan pemeliharaan keamanan dan
ketenteraman atau keharmonian agama (yang merupakan perkara yang
bersifat jenayah umum) tetapi merupakan kesalahan agama semata-mata
bertujuan untuk menyekat penyebaran doktrin dan ajaran palsu oleh E
orang yang menganut agama Islam kepada orang lain yang menganut
kepercayaan yang sama (lihat perenggan 135–143 & 158–169).
(8) (oleh Tengku Maimun Ketua Hakim Negara, majoriti) Pemeriksaan
rapi ke atas seksyen-seksyen lain yang dipertikaikan mendedahkan
bahawa DUNK, dan oleh itu responden, tidak mempunyai kuasa untuk F
membuatnya dan ia adalah tidak mengikut perlembagaan kerana ia
bukan kesalahan agama semata-mata atau perkara yang termasuk dalam
Butiran 1 Senarai Negeri atau mana-mana peruntukan lain di dalam PP
yang mana Dewan Undangan Negeri berhak menggubal
undang-undang tetapi termasuk dalam perkara-perkara yang mana G
Parlimen berhak menggubal undang-undang. Seksyen-seksyen ini ialah:
s 11 (Memusnahkan atau mencemarkan tempat ibadat), s 14 (Liwat), s
16 (Persetubuhan dengan mayat), s 17 (Persetubuhan dengan bukan
manusia), s 47 (Perbuatan sumbang mahram), s 31 (Gangguan seksual),
s 34 (Memiliki dokumen palsu, memberikan keterangan, maklumat atau H
pernyataan palsu), s 36 (Apa-apa yang mengkhayalkan), s 37(1)(b)
(Menganjurkan, memberi tempat atau membenarkan apa-apa aktiviti
perjudian di mana-mana premis), s 39 (Mengurangkan ukuran, sukatan
dan timbangan), s 40 (Melakukan transaksi muamalat yang berlawanan
dengan hukum syarak), s 41 (Melakukan transaksi muamalat secara riba, I
dll), s 42 (Penyalahgunaan penandaan dan perbahasan halal), s 43
(Menawar atau memberi perkhidmatan maksiat), s 44 (Perbuatan
sebagai persediaan menawar atau memberi perkhidmatan maksiat), s 45
(Perbuatan sebagai persediaan untuk melakukan maksiat) dan s 48
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 161

A (Muncikari) (lihat perenggan 125–238).

(9) (oleh Abdul Rahman Sebli KH (Sabah dan Sarawak), menentang)
Pempetisyen-pempetisyen tidak mempunyai locus standi untuk
mengekalkan petisyen tersebut dan akibatnya mahkamah tidak
B mempunyai asas dalam undang-undang untuk melaksanakan bidang
kuasa asal eksklusifnya di bawah perkara 128(1)(a) PP untuk mendengar
dan memutuskan merit petisyen tersebut. Mahkamah tidak boleh
mengambil alih bidang kuasa jika ianya tiada. Petisyen tersebut adalah
penyalahgunaan proses mahkamah dan sepatutnya dibatalkan.
C Kebenaran tidak sepatutnya diberikan pada awalnya dan ia perlu
diketepikan. Alasan keputusan hakim yang memberikan kebenaran
tersebut tidak menunjukkan bahawa beliau telah menggunakan
fikirannya dengan secukupnya terhadap undang-undang mengenai locus
standi dan bagaimana ia berfungsi dalam cabaran perlembagaan di
D bawah perkara 4(4) PP (lihat perenggan 267 & 359).
(10) (oleh Abdul Rahman Sebli KH (Sabah dan Sarawak), menentang)
Mahkamah tidak mempunyai bidang kuasa untuk mendengar petisyen
tersebut kerana pempetisyen-pempetisyen tidak mempunyai hak untuk
E hadir di hadapannya. Tiada autoriti dikemukakan kepada mahkamah
untuk menunjukkan bahawa walaupun pempetisyen-pempetisyen tidak
mempunyai locus standi untuk mengekalkan tindakan tersebut,
mahkamah bagaimanapun mempunyai bidang kuasa di bawah perkara
128(1)(a) PP untuk mendengar dan memutuskan merit petisyen
F tersebut. Ini bukan cadangan undang-undang yang boleh dipertahankan
kerana locus standi adalah syarat duluan kepada pelaksanaan bidang
kuasa mahkamah di bawah perkara 128(1)(a). Pemberian kebenaran
tidak boleh memberikan bidang kuasa apabila bidang kuasa tidak ada
pada mulanya, dan mahkamah tidak mempunyai bidang kuasa apabila
G tiada kedudukan untuk menuntut. Pempetisyen-pempetisyen telah
memfailkan kes mereka di mahkamah yang betul tetapi tanpa locus
standi atau kedudukan yang diperlukan untuk menuntut, permohonan
mereka tidak boleh dipertahankan (lihat perenggan 392, 393, 395 &
397).
H (11) (oleh Abdul Rahman Sebli KH (Sabah dan Sarawak), menentang)
Walau apa pun ujian untuk menentukan locus standi dalam cabaran
perlembagaan, sama ada liberal atau ketat, ujian yang ditetapkan oleh
majoriti dalam Datuk Seri Anwar Ibrahim v Government of Malaysia &
Anor [2020] 4 MLJ 133 adalah ujian yang betul, yang pentingnya, yang
I tidak dianggap salah oleh mana-mana keputusan mahkamah.
Pengenepian keputusan majoriti tersebut oleh panel semakan mahkamah
yang seterusnya kerana pelanggaran peraturan audi alteram partem tidak
sama sekali menjadikan pendapat majoriti tersebut mengenai locus
standi tidak relevan. Oleh itu, undang-undang mengenai locus standi
162 Malayan Law Journal [2024] 2 MLJ

yang ditetapkan oleh majoriti dalam kes tersebut adalah yang akan A
digunakan apabila menentukan sama ada pempetisyen mempunyai
kedudukan yang diperlukan untuk menuntut dalam cabaran di bawah
perkara 4(4) PP — dan bahawa sama ada pempetisyen telah membuktian
pelanggaran hak-hak perlembagaan yang boleh dipertikaikan selain
daripada ‘terjejas teruk’ dan mempunyai ‘kepentingan tulen’ dalam hal B
perkara pokok saman tersebut (lihat perenggan 309, 314, 324, 326 &
367).
(12) (oleh Abdul Rahman Sebli KH (Sabah dan Sarawak), menentang)
Untuk mewujudkan locus standi, pempetisyen-pempetisyen dalam kes C
ini perlu pertama sekali menunjukkan bahawa cabaran mereka terhadap
keperlembagaan seksyen-seksyen yang dipertikaikan tersebut tidak
wujud dalam kekosongan fakta dan bahawa terdapat pelanggaran yang
boleh dipertikaikan terhadap hak-hak perlembagaan mereka. Hanya
selepas itu kontroversi yang betul-betul dan sebenar boleh timbul antara D
pempetisyen-pempetisyen dan responden untuk penentuan mahkamah
dalam melaksanakan bidang kuasa asal eksklusifnya di bawah perkara
128(1)(a) PP. Pempetisyen-pempetisyen telah gagal sepenuhnya untuk
melepasi halangan ini. Pertikaian mereka bahawa Dewan Undangan
Negeri tidak mempunyai kekompetenan untuk menggubal E
seksyen-seksyen yang dipertikaikan tersebut hanya menjurus kepada
merit substantif cabaran mereka dan bukan kepada isu locus standi
mereka (lihat perenggan 327–328).
(13) (oleh Abdul Rahman Sebli KH (Sabah dan Sarawak), menentang) F
Kebimbangan pempetisyen pertama terhadap risiko sebenar bahawa dia
mungkin tertakluk kepada kuasa penyiasatan Kerajaan Kelantan
berhubung dengan seksyen-seksyen yang dipertikaikan (seperti yang
dinyatakan dalam permohonan kebenarannya) bukan sahaja tidak
berasas tetapi bukan alasan untuk memberikannya locus standi untuk G
mengekalkan petisyen tersebut. Walau apa pun, dakwaan tersebut telah
ditinggalkan dalam pernyataan berkanunnya yang difailkan untuk
menyokong petisyen tersebut selepas kebenaran diberikan. Hakikatnya
ialah tiada apa yang perlu ditakuti oleh pempetisyen-pempetisyen
melainkan mereka kerap mengambil bahagian dalam kelakuan-kelakuan H
yang dijenayahkan oleh seksyen-seksyen yang dipertikaikan tersebut.
Pempetisyen-pempetisyen tidak menunjukkan bagaimana kehidupan
peribadi mereka telah ‘overshadowed in significant respects’ oleh
seksyen-seksyen yang dipertikaikan tersebut (lihat perenggan 375–377).
(14) (oleh Abdul Rahman Sebli KH (Sabah dan Sarawak), menentang) I
Keperluan untuk kebenaran di bawah perkara 4(4) PP adalah untuk
memastikan bahawa prosiding remeh atau menyusahkan untuk
pengisytiharan tidak dimulakan oleh ‘busybodies, cranks and other
mischief-makers’. Mahkamah harus menolak locus standi bagi
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 163

A individu-individu tersebut pada peringkat kebenaran. Permohonan

untuk kebenaran di bawah perkara 4(4) PP memerlukan penentuan
bahawa terdapat pelanggaran yang boleh dipertikaikan terhadap hak-hak
perlembagaan pempetisyen, bahawa dia benar-benar berkepentingan
dan bahawa dia telah terjejas oleh peruntukan atau
B peruntukan-peruntukan yang dipertikaikan. Hanya selepas itu
mahkamah akan mempunyai bidang kuasa asal eksklusifnya di bawah
perkara 128(1)(a) PP untuk mendengar merit kes tersebut. Locus standi
mesti diwujudkan terlebih dahulu sebelum kebenaran boleh diberikan.
Dan jika kebenaran telah diberikan secara tidak wajar, ia mesti
C diketepikan pada pendengaran penuh (lihat perenggan 355, 357 &
380).]

Cases referred to
AG Fed v AG Lagos State (2017) 8 NWLR (PT 1566) 20, SC (refd)
D Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ
171, SC (refd)
Adesanya v President of the Federal Republic of Nigeria and others [1981] 5 SC
112, SC (refd)
Ah Thian v Government of Malaysia [1976] 2 MLJ 112, FC (refd)
E Canada (Attorney General) v Downtown Eastside Sex Workers United Against
Violence Society [2012] 2 SCR 524, SC (refd)
Che Omar bin Che Soh v PP [1988] 2 MLJ 55, SC (refd)
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374,
HL (refd)
F Datuk Bandar Kuala Lumpur v Perbadanan Pengurusan Trellises & Ors and other
appeals [2023] 3 MLJ 829; [2023] 5 CLJ 167, FC (refd)
Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2020] 4 MLJ
133; [2020] 3 CLJ 593, FC (refd)
Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ
G 1; [2021] 6 CLJ 1, FC (refd)
Durning v Citibank NA 950 F 2d 1419 (1991) (refd)
Gin Poh Holdings Sdn Bhd (in voluntary liquidation) v The Government of the
State of Penang & Ors [2018] 3 MLJ 417, FC (refd)
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, SC (refd)
H IRC v National Federation of Self Employed and Small Businesses [1982] AC
617, HL (refd)
Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ
323; [2021] 3 CLJ 465, FC (refd)
Iki Putra bin Mubarrak v Kerajaan Negeri Selangor [2020] 4 MLJ 213; [2020]
I 6 CLJ 133, FC (refd)
Janata Dal v HS Chowdhary And Ors [1992] SUPP 1 SCR 226, SC (refd)
Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64 (refd)
Ketua Pegawai Penguatkuasa Agama & Ors v Maqsood Ahmad & Ors and
another appeal [2021] 1 MLJ 120, CA (folld)
164 Malayan Law Journal [2024] 2 MLJ

Liba v Koko (2017) 11 NWLR (PT 1576) 335 (refd) A

Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi &
Anor [2014] 3 MLJ 145; [2014] 2 CLJ 525, FC (refd)
Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119, SC
(folld)
Michigan Millers Mut Ins Co v Bronson Plating Co 197 Mich App 482; 496 B
NW2d 373 (1992), CA (refd)
Myriam v Mohamed Ariff [1971] 1 MLJ 265 (refd)
PP v Dato’ Yap Peng [1987] 2 MLJ 311, SC (folld)
Robert Linggi v The Government of Malaysia [2011] 2 MLJ 741; [2011] 7 CLJ
C
373, HC (refd)
SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor,
intervener) [2022] 2 MLJ 356, FC (refd)
Shanti Kumar R Canji v The Home Insurance Co of New York 1974 AIR 1719,
SC (refd) D
Straman v Lewis 220 Mich App 448559 NW2d 405 (1996), CA (refd)
Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara, Malaysia &
Anor [1999] 2 MLJ 241, FC (refd)
Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan Malaysia,
intervener) and other applications [2009] 6 MLJ 354; [2009] 2 CLJ 54, FC E
(refd)
Tan Eng Hong v Attorney-General [2012] 4 SLR 476, CA (refd)
Wong Shee Kai v Government of Malaysia [2022] 6 MLJ 102; [2022] 10 CLJ 1,
FC (refd)
Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals F
[2021] 1 MLJ 478; [2021] 1 CLJ 631, FC (refd)

Legislation referred to
Courts of Judicature Act 1964 ss 83, 84
Federal Constitution arts 3, 3(1), 3(4), 4, 4(1), (3), (3)(a), (3)(b), (4), G
8, 11(4), 71(4), 74, 77, 121(1A), 128, 128(1), 128(1)(a), 160(2), 162,
Ninth Schedule, List I, items 3, 4, 4(e)(i), (h), 7, 8(f ), 14, 14(c), 14(d),
List II, item 1, List III
Kelantan Syariah Criminal Code (I) (Enactment 14) Enactment 2019 ss 2(1),
5, 11, 11(1), (2), 13, 14, 16, 17, 22, 30, 31, 34, 36, 37, 37(1)(a), H
(1)(b), 39, 40, 41, 42, 43, 44, 45, 47, 48, Parts III, VI
National Security Council Act 2016
Penal Code ss 298A, 376
Planning (Development) Rules 1970 r 5(3)
Rules of Court 2012 O 53, O 53 r 2(4) I
Rules of the Federal Court 1995 r 7, 33, 137
Rules of the Supreme Court [UK] O 53
Syariah Criminal Offences (Selangor) Enactment 1995 s 28
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 165

A Malik Imtiaz Sarwar (with Surendra Ananth and Lim Yvonne) (Surendra
Ananth) for the petitioner.
Idham Abd Ghani (with Adam Mohamed, Mohd Syazwan Muhsin Negara,
Kamaruzaman Muhammad Arif, Nik Suhaimi Nik Sulaiman, Arham Rahimy
Hariri and Muhammad Izzat Dzulkafli) for the respondent.
B Yusfarizal Yusoff (with Mohd Faizi Che Abu) (Faizi & Assoc) amicus curiae for
Jabatan Hal Ehwal Agama Islam Kelantan.
Tabian Tahir (with Noor Amalina Mursiedy) (Hashim Amran Tabian Ahmad)
amicus curiae for Majlis Agama Islam dan Adat Istiadat Melayu Negeri
Kelantan (MAIK).
C
Adnan Seman @ Abdullah (with Muhammad Rafique Rashid Ali) (Adnan
Sharida & Assoc) amicus curiae for Majlis Agama Islam Wilayah Persekutuan
(MAIWP).
New Sin Yew (with him Siti Summaiyah Ahmad Jaafar) (Amerbon) amicus curiae
D for Sisters in Islam (SIS).
Roshalizawati Muhamad (Shaliza & Partners); Md Faiez Md Suhaimi (Faiez &
Co); Fahri Azzat (Fahri, Azzat & Co) amicus curiae for Malaysian Bar.
Mohd Tajuddin Abd Razak (with Majdah Muda) (Hasshahari & Partners)
amicus curiae for Badan Peguam Syarie Wilayah Persekutuan.
E Haniff Khatri (with Zainul Rijal Abu Bakar and Aidil Khalid) (Chambers of
Zainul Rijal) amicus curiae for Persatuan Peguam-Peguam Muslim Malaysia
(PPMM).
Hanif Hassan (Hanif Hassan & Co) amicus curiae for Persatuan Peguam Syarie
Malaysia (PGSM).
F Rosfinah Dato’ Hj Rahmat) (Rosfinah & Co) amicus curiae for Persatuan Peguam
Syarie Malaysia (PGSM).
Fakhrul Azman bin Abu Hassan (with him Ahmad Edham Abdulwani
Mohamad) (Azaine & Fakhrul) amicus curiae for Majlis Agama Islam dan
Adat Istiadat Melayu Perlis (MAIPs).
G Hanif Hassan (Hanif Hassan & Co) amicus curiae for Majlis Agama Islam Negeri
Islam Negeri Sembilan (MAINS).
Zakaria Ahmad (Zakaria Ahmad & Co) amicus curiae for Majlis Ugama Islam
Sabah (MUIS).
Adham Jamalullail HjIbrahim (with Norazali Nordin) (Adham & Assoc) amicus
H
curiae for Majlis Agama Islam dan Adat Melayu Perak (MAIPK).
Sallehudin Harun (with Yusfarizal Yusoff ) (Sallehudin & Partners) amicus curiae
for Majlis Agama Islam dan Adat Melayu Terengganu (MAIDAM).
Hj Mohd Adli bin Ithnin (with Hjh Rosfinah Hj Rahmat) (Adli & Co) amicus
I curiae for Majlis Agama Islam Melaka (MAIM).
166 Malayan Law Journal [2024] 2 MLJ

Tengku Maimun Chief Justice (delivering majority judgment of the A

court):

INTRODUCTION

[1] My learned brother Abdul Rahman Sebli CJ (Sabah and Sarawak) is B

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 and have expressed their agreement with it. This is the
majority judgment of the court.
C
[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 (‘the FC’). Likewise, any
references to ‘sections’ means any reference to the sections of the Kelantan D
Syariah Criminal Code (I) Enactment 2019 (‘Enactment 14’) which
incidentally by virtue of s 1(3) of the same, applies to Muslims only and that
too, only in the State of Kelantan.

THE FEDERAL COURT’S EXCLUSIVE ORIGINAL JURISDICTION

E

[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) and 128(1)). F

[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 G
the Federal Court — without leave.

[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 H
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 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 I
neither the Federation nor a State.

[6] ‘Leave of Court’ simply means something that requires prior permission
from the court. In other words, a potential petitioner must first seek the
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 167

A 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 in Wong Shee Kai v
Government of Malaysia [2022] 6 MLJ 102; [2022] 10 CLJ 1 (‘Wong Shee
B 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 call
C
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’.

D [8] The two types of categories stated above that invoke the Federal Court’s
original jurisdiction are exclusive to the Federal Court. This means 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

E that ss 5, 11, 13, 14, 16, 17, 30, 31, 34, 36, 37, 39, 40, 41, 42, 43, 44, 45, 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
F to the sections under challenge as the ‘impugned sections’.

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

Majlis Agama Islam dan Adat Istiadat Melayu Negeri Kelantan (‘MAIK’) as
G 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 Wong
Shee Kai, ‘incompetency challenges’ are a specific category of ‘inconsistency
H 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 declaration of invalidity under cll (3)
and (4) of art 4, the court can and should also declare those laws void under
I 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.
168 Malayan Law Journal [2024] 2 MLJ

JUDICIAL INDEPENDENCE AND PUBLIC CONTROVERSY A

[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 the reasons for
those decisions. Our judgments are publicly available and it would behove the B
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 C
appearing before this court, Yusfarizal Yusoff has made certain remarks
regarding this case and this court’s prior decision in Iki Putra bin Mubarrak v
Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 323; [2021] 3 CLJ 465 (‘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 to or D
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 E
merely saying he has given enough reason to the Attorney General, as 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 erroneous F
and politically-fuelled suggestions, has absolutely nothing to do with
undermining the religion of Islam. The allegation that any decision of 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.
G
[15] As was explained regarding the Federal Court’s exclusive original
jurisdiction earlier, the only issue in this case is whether the respondent, via 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 H
LSK? The petition has nothing to do with the substantive principles of Islamic
law or its position in this country.

PRELIMINARY ISSUES
I
Locus standi

[16] Before we consider the merits of the petition, we will deal with several
preliminary objections raised by the respondent.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 169

A [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
B 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
C
petitioners have no locus standi to file this petition or that in any event, the
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
D
respondent.

[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
E 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
exist as law, and can be enforced against them. They therefore maintain that
they have a basis to challenge the impugned sections.
F
[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.

G [22] Locus standi refers to the standing or right of the person to sue. The
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] 3
MLJ 829; [2023] 5 CLJ 167 (‘Taman Rimba’). In that case, the court endorsed
the minority judgment of Eusoffe Abdoolcader SCJ in Government of Malaysia
H v Lim Kit Siang [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 law suit provided that he has some
interest in the matter.

I [23] Taman Rimba is an apt example of administrative judicial review. 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.
170 Malayan Law Journal [2024] 2 MLJ

[24] In a case such as the present one involving constitutional judicial review, A
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:
4 Supreme law of the Federation B
(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 C
under art 4(1) must have been so brought on the premise of that law having
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 D
said law is invalid. In light of the presumption of constitutionality, until and
unless that law is challenged and struck down in the appropriate forum, then
the law must continuously be presumed valid.

[26] Giving the respondent’s proposition its deepest possible consideration, E

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 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 F
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 question of validity comes second to the personality
before the court.
G
[27] In our view, the following passage in the judgment of Abdoolcader SCJ
in Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311 (‘Yap Peng’), is
instructive (at p 319):
… The power of the public prosecutor under s 418A is uncanalized, unconfined and
vagrant. The deputy however assures us that this power will only be exercised H
reasonably … Sankey J, however, had no difficulty in holding the Executive action
illegal, and he pointed out (at p 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. I

[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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 171

A 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 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
B suggested by this court in the judgment. What more in this case where we are
dealing with constitutional judicial review.

[29] We therefore take the view that the fact that legislation has been passed
C
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 persons that can bring
them, apart from differentiating between the nature and procedure for those
D proceedings ie between ‘incompetency’ and ‘inconsistency’ challenges.

[30] As explained in Wong Shee Kai, ‘incompetency challenges’ are a 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
E 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 grounds stated in art 4(3)).
F
[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 challenge
under arts 4(4) and 128 of the Federal Constitution. The passing of a law
(whether Federal or State) is a legislative act or conduct which always remain
G subject to judicial scrutiny in line with the principle of separation of powers.
We find no constitutional basis to limit the types of people or category 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
H validity of that same law.

[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.
I
Failure to name the correct parties

[33] Another preliminary objection taken by the respondent is that the

petitioners have failed to name the correct party or that they have named a
172 Malayan Law Journal [2024] 2 MLJ

party who has no nexus to this petition. The respondent claims that this A
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
Kelantan. The respondent submits that the petitioners should have instead B
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 respondent has no such
C
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 D
having raised that issue then, appeared to have abandoned the issue at the
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.
E
[36] Whatever the position taken by the parties in this case, we are of the
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.
F
[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
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.
G

[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 terms of art 4(3)
and (4) namely that the LSK had no power to make the impugned sections. As
such, the provisions of the FC should apply before any other provisions H
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 members of it are Ministers,
to the Cabinet of Ministers in the Government of the Federation (and in particular I
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 of a
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 173

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.
B
[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
C
so much on how it is enforced.

[41] Viewed in this way, art 4(3) and 4(4) warrant closer attention and they
state as follows:
D (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 —
E
(a) if the law was made by Parliament, in proceedings between the Federation
and one or more States;
(b) if the law was made by the Legislature of a State, in proceedings between
the Federation and that State.
F (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, and so shall any
State that would or might be a party to proceedings brought for the same purpose
G 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 had no
power to make it, and the party making such a challenge is the Federation, then
H 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 was the Federation, the
present respondent, being the Government of the State of Kelantan would be
the correct respondent as representing the State of Kelantan.

I [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 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
174 Malayan Law Journal [2024] 2 MLJ

other than the Federation or a State, art 4(4) does contemplate that the A
respondent can be someone other than the State where the declaration sought
is against a State-legislated provision.

[44] Considered as a whole, had the petitioner been the Federation, the FC
contemplates that suing the State concerned would not only have been B
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, 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 C
effect of the present petition is sought.

[45] We are therefore of the view that it defies any logical interpretation of
art 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. D

[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 means
E
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 F
whether the Government of that State can be named as the sole respondent 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 G
to the petition. At the very minimum, it is sufficient if the Government 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 H
challenged on the grounds that its Legislature had no power to make it.

[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. I

Purported expert evidence

[50] There is a final preliminary issue. Counsel for the petitioners has
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 175

A 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’
encompass aqidah, syariah and akhlak; and (ii) ‘precepts of Islam’ are derived
B 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
C
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
D event, the Islamic principles of aqidah, syariah or 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.

E ANALYSIS/DECISION

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
F 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 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
G 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.

[53] In respect of the impugned sections, in the course of his oral argument,
H
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 are incompetent to
I enact laws on the same subject-matter as the corresponding federal law.

[54] In their defence of the validity of the impugned sections, the 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,
176 Malayan Law Journal [2024] 2 MLJ

the respondent argues that the impugned sections are different from any federal A
counterpart.

[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 B
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.

[56] The relevant portion of item 1 of the State List, in granting the States C
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 professing the religion
of Islam against precepts of that religion, except in regard to matters included in the
Federal List; … D

[57] In direct response to the incorrect way of interpreting item 1 based on

a prior decision of this court in Sulaiman bin Takrib v Kerajaan Negeri
Terengganu (Kerajaan Malaysia, intervener) and other applications [2009] 6
MLJ 354; [2009] 2 CLJ 54 (‘Sulaiman Takrib’), this court said the following in E
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 F
Merdeka Day has always been ‘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 would render the words ‘Federal G
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 validity of a state law is questioned, for the courts to first H
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 bin Takrib, the distinction would have to be drawn on a case by case basis.
I
[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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 177

A matters included in the Federal List’ and not ‘except in regard to matters
included in Federal Law’. As such, any argument that takes the approach in
Sulaiman bin Takrib is rejected.

[59] In Iki Putra, this court conveniently referred to this phrase ‘except in
B 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, 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
C
also clearly articulated by Mohamed Azmi SCJ, who in dealing with the
constitutionality of s 298A of the Penal Code in Mamat bin Daud & Ors v
Government of Malaysia [1988] 1 MLJ 119 (‘Mamat bin Daud’), said at p 125:
… The fact that the Administration of Muslim Law Enactment of the states has yet
D to provide specifically for punishment against such acts 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.
E
[60] Earlier at p 123, His Lordship said:
In determining whether s 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
F 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, it is in fact not so, the court must so declare.

[61] We endorse the approach advocated in Mamat bin Daud as the correct
G 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
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
H 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 deemed beyond
the scope of legislative jurisdiction.

I [62] And thus, 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 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
178 Malayan Law Journal [2024] 2 MLJ

and the Federation, have been allowed their own respective fields of power of A
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 (M) v Kerajaan Negeri Selangor
(Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 (‘SIS Forum’) B
which followed settled reasoning in earlier cases such as Mamat bin 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. C

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’. D

[65] The first misapprehension that arises is that the States can enact any 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 E
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 means.

[66] The second misapprehension that arises is that the States can enact any F
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 and from the
lens of Islamic precepts, then the said impugned law is validly enacted in
accordance with item 1 of the State List. G

[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 v Maqsood
Ahmad & Ors and another appeal [2021] 1 MLJ 120 (‘Maqsood Ahmad’). H

[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 huge
clarion call for independence from the British. As a result, parties from various
divides discussed the creation of the Federal Constitution. I

[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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 179

A 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 as here, we have
a written constitution.

[70] Our FC forms the basis of the existence of all three arms of our Federal
B 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 important public
commissions, fundamental rights, citizenship and so on.
C
[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, the States
D 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 joint areas upon
F 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
G are to be accorded to Parliament with certain other limited 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.

H [74] In particular, in the Reid Commission Report (‘RCR’), the Reid

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:
180 Malayan Law Journal [2024] 2 MLJ

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

[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 D
to be a democratic country 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 that with E
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 F
the 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 H
procedure.

[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:
I
77 Residual power of legislation
The Legislature of a State shall have power to make laws with respect 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 bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 181

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 nature of the
B 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 Rulers have agreed to specific
powers being exercised by the Federation under the Federation Agreement of 1948
C 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 the
defence power is just as wide under our recommendation as it would be if the
D 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 Article 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 if some unforeseen matter arises which is so peculiar
that it cannot be brought within any of the items mentioned in any of the
E 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 to
F 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
G States can enact any law so long as that law was enacted in accordance with 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
H (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 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
I laws that the States can enact on that subject matter.

[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 law’
182 Malayan Law Journal [2024] 2 MLJ

is generally mentioned in item 4 of the Federal List means that the primary A
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
C
Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 (‘Che
Omar’). In particular, 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 D
religion of Islam became separated into two separate 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 E
because in Islam, sovereignty belongs to God alone. By ascribing 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.
F
[84] His Lordship explains how with the arrival of the British, our general
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 G
establishment of the Council of States and other 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 H
territorial application binding all persons irrespective of religion and race 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 MB
I
Hooker, Islamic Law in South-east Asia, 1984.)

[85] And at pp 56–57, the Supreme Court concluded:

In our view, it is in this sense of dichotomy that the framers of the Constitution
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 183

A understood the meaning of the word ‘Islam’ in the context of Article 3. If it had been
otherwise, there would have been another provision in the Constitution which
would have the effect that any law contrary to the injunction of Islam will be void.
Far from making such provision, Article 162, on the other hand, purposely
preserves the continuity of secular law prior to the Constitution, unless such law is
B contrary to the latter.
…
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
C 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 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.
D

[86] Clauses (1) and (4) of art 3 provide thus:

3 Religion of the Federation

E (1) Islam is the religion of the Federation; but other religions may be practised in
peace and harmony in any part of the Federation.
…
(4) Nothing in this Article derogates from any other provision of this Constitution.
F
[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 divine or Islamic law
and the reason why we are not a purely secular State is because limited
G 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] 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 adjudicate upon matters that are not
I contained within their jurisdiction.

[89] We postulate, from historical and academic references that Islamic 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
184 Malayan Law Journal [2024] 2 MLJ

so, our general criminal law needed to be developed such that it could be A
applied equally to all persons regardless of race or religion. This power was
conferred unto Parliament generally by virtue of item 4 of the Federal List
which says, in relevant part to criminal law:
4 Civil and criminal law and procedure and the administration of justice, B
including —
(a) constitution and organization of all courts other than Syariah Courts;
(b) jurisdiction and powers of all such courts;
… C
(e) subject to paragraph (ii), the following:
(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; D
marriage, divorce and legitimacy; married women’s property and status;
interpretation of federal law; negotiable instruments; statutory
declarations; arbitration; 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 E
and insolvency; oaths and affirmations; limitation; reciprocal
enforcement of judgments and orders; the law of evidence;
(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; F
…
(f ) official secrets; corrupt practices;
…
(h) creation of offences in respect of any of the matters included in the Federal List G
or dealt with by federal law; …

[90] By contrast, and at the risk of repetition, item 1 of the State List
provides, in part relevant to this case: H
(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
offences by persons professing the religion of Islam against precepts of that
religion, except in regard to matters included in the Federal List; … I

[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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 185

A 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 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
B
requires clarification, as it was claimed by the second respondent that if every
offence is criminal law then no offence may be created by 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
C 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?
[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
D 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 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
E 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 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:
F (a) offences relating to aqidah. For example wrongful worship, deviating from
Islamic belief or contrary to hukum syarak and 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
G Ramadan and non-payment of zakat or fitrah; and
(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
H this country that must conform to the doctrine, tenets and 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 that possibly be validly enacted by the State Legislatures that may
emerge from the facts and circumstances of each case. In my opinion, all these
I 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 the FC. As stated by Mohamed Azmi SCJ in Mamat bin
Daud (at p 125) ‘… to create an offence for making an imputation concerning such
186 Malayan Law Journal [2024] 2 MLJ

subject matter is well within the legislative competence of the State Legislatures and A
not that of Parliament’. When the true test is applied, the inevitable conclusion is
that these religious offences have nothing to do with ‘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 bin Daud (at p 27)
(citing Attorney-General for Ontario & Ors v Canada Temperance Federation & Ors B
[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 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. C
Another point is that, these are religious offences under the Syariah Court’s
jurisdiction and applicable only to persons 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 D
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
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.
E
[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 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 F
non-Muslims are subject to the same general set of criminal laws. However,
because of the duality of our legal system, Muslims are, in 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. G

[93] It was in this context that in [59]–[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 MLJ 241 (‘Sukma Darmawan’). What we have alluded to earlier H
provides a full answer to the respondent’s proposition that State-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. I

[94] It must be said again as it was said in Iki Putra that many criminal law
offences such as theft, robbery, rape and corruption would naturally also
encompass and are caught by the precepts of Islam. But, because these offences
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 187

A 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 legislative powers
between the Federal Legislature (Parliament) and the State Legislatures.

B [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 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.
C
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

‘Criminal Law’
D
Fundamental principles

[96] Given the brief historical analysis above and the dichotomy between
E Federal and State powers of legislation, it comes as no surprise why there is,
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 to find a means to preserve and
F protect both Malaysia’s secular and Syariah dual legal systems.

[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
G State List is the emboldened portion, ie the ‘preclusion clause’.

[98] Upon reading the first part of the phrase in the entry, one has to ask 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
H 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 relation to the offences
that the States can create and punish by virtue of item 1 of the State List.

I [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 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
188 Malayan Law Journal [2024] 2 MLJ

enact laws with respect to ‘Islamic law relating to testate and intestate, A
betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy,
guardianship, gifts, partitions and non-charitable trusts …’. Since 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. B

[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 reference to any
of the expressly stated entries in item 1 of the State List, it cannot possibly fall
C
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
‘precepts of Islam’ is not just confined to the entries included specifically in D
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 E
punishment of offences by persons professing the religion of Islam against
precepts of that religion as included herein …’. 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 F
in item 1, it follows that the meaning of ‘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.
G
[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
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 to any entry H
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 I

our view that the second broad category of the phrase ‘precepts of Islam’ is its
more open-ended definition of anything that can possibly be an offence in
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.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 189

A [105] Even though this is the second meaning of that phrase, and it is a broad
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
B religious in nature’.

[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
C ‘religious offence’.

[107] What then is a ‘purely religious offence’? Although the second 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
D
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 Federal List which deals with
Parliament’s power to make ‘criminal law’.
E
[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 counsel for the
F 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
G ‘criminal law’. As any person who can appreciate the gravity of these kinds of
cases should recognize, 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.

H [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 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.

I [111] The first broad category of ‘criminal law’ refers to the power of
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
190 Malayan Law Journal [2024] 2 MLJ

‘criminal law’. This is also made apparent by a direct reading of item 4(h) of the A
Federal List which provides:
4. Civil and criminal law and procedure and the administration of justice,
including —
… B
(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 C
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.
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 D
category, which deals with all offences other than by direct reference to the
Federal List, as ‘general criminal law’.

[113] We are thus left with two legal phrases that are incapable of being
E
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’ that is
constituted in ‘criminal law’ in item 4 of the Federal List. F

[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 regard to our G
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’.

[116] Given the structure of our FC that leans in favour of secularity, ‘general I
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 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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 191

A 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.

[117] This then leaves us with ‘purely religious offences’. In light of what has
B 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 without closing any
categories, the general characteristics of what can constitute a ‘religious offence’
C
is one that might relate, among other things, to: (1) aqidah; (2) sanctity of the
Islamic religion and its institution; or (3) one purely relating to morality in
Islam.

D [118] The second and final step in that assessment requires the court to
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’.

E [119] If the State-legislated offence is one that can apply only to Muslims,
enacted only for purposes of Islamic law or religious reasons, and confined only
to the religion of Islam relating to: (1) aqidah; (2) sanctity of the Islamic
religion and its institution; or (3) one purely relating to morality in Islam, then
it is a ‘purely religious offence’ and is validly enacted by the State.
F
[120] If however, the State-legislated offence in question is a ‘religious 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
G be invalid by virtue of it having been caught by the preclusion clause.

[121] For convenience, we would summarise the principles alluded to above,

as follows:

H (a) 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;
(b) 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
I 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
offence and the law is validly enacted by the State Legislature as it clearly
falls under the State List;
192 Malayan Law Journal [2024] 2 MLJ

(c) the second broad category covers a purely religious offence relating to: A
(i) aqidah; (ii) sanctity of the Islamic religion or its institutions; or
(iii) one purely relating to morality in Islam;
(d) 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
(e) 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. D
Examples of these offences are murder, theft, robbery, corruption which
can be considered offences against the precepts of Islam but in pith and
substance it falls under the criminal law of general application to
everyone in this country.
E
[122] In applying the aforesaid principles, at all times the proposition
expounded by this Court in Gin Poh Holdings Sdn Bhd (in voluntary
liquidation) v The Government of the State of Penang & Ors [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 F
interpretation must be taken.

Constitutionality of the impugned sections

[123] With all the above principles in mind, we come now to the crux of this G
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] 2 MLJ 112).
H
[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].
I
Section 11

[125] Section 11 states thus:

11 Destroying or defiling place of worship
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 193

A (1) Any person who destroys, damages or litters any place of worship for
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.
B (2) Any person who destroys, damages or litters any place of worship for
non-Muslims which is recognized 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
C 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 for payment of reasonable compensation and any appropriate order.
D
[126] The operative portions of s 11 are sub-ss (1) and (2). The actus reus
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
E relate to an intention to insult or degrade Islam in sub-s 11(1) and likewise with
non-Muslims in sub-s 11(2).

[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
F 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 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.
G
[128] There is nothing in the submission of the respondent suggesting that the
offence in section 11 can be referred to any of the entries in item 1 of the State
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 …’.
H
[129] Giving ‘… mosques or any Islamic public place of worship …’ its widest
possible construction, we find that this entry allows States to enact the
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
I 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) which deals with
non-Muslim places of worship and thereby has no nexus to any entry in item 1
of the State List.
194 Malayan Law Journal [2024] 2 MLJ

[130] Having made these observations, it is our view that at least in relation to A
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 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 the State List vis a vis the B
entry relating to ‘… mosques or any Islamic public 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
C
place of worship …’.

[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 D
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 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’. E

[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.
F
[134] Section 11 is thus caught by the preclusion clause. We therefore find
that the respondent had no power to make s 11 and it is therefore
unconstitutional on that ground.

Section 13 G

[135] Section 13 provides thus:

13 Selling or giving away child to non-Muslim or morally reprehensible Muslim
(1) Any person who sells, gives or surrenders his child or children under his custody H
to —
(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 I
thousand ringgit or to imprisonment for a term not exceeding three years or to
whipping by six strokes or to any combination thereof.
(2) The court may make any order that it considers appropriate in respect of the
child or the children.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 195

A [136] The petitioners’ submission is that this provision is unconstitutional

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.
B [137] The petitioners suggest that the words ‘selling, giving or surrendering’ a
child within someone’s custody which form the actus reus of the offence appear
similar to matters of concern under the general criminal law which remains
under Parliament’s exclusive jurisdiction.
C
[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 matter. It deals
D
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).
E
[139] We are convinced that 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
F 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 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
G 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 as a subject is itself
a matter only for Parliament or in the Concurrent List.

H [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 that part of
the precepts of Islam and Islamic family on custody is that a Muslim child
I 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
purpose of s 13 is in pith and substance, to prevent the propagation of faiths
196 Malayan Law Journal [2024] 2 MLJ

other than Islam (including the improper practices of Islam) to Muslim A

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).

[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. B

[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. C

Sections 14, 16, 17 and 47

[145] Sections 14, 16, 17, and 47 can be dealt with together as they relate to
the same larger subject matter — sexual offences. D

[146] This is what s 14 provides:

14 Sodomy
(1) Any man who commits an act of sodomy which is not liable to the E
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.
(2) Any man who attempts to commit an act of sodomy commits an offence F
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 G
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. H

[147] Section 16 reads thus:

16 Sexual intercourse with corpse
(1) Any person who performs sexual intercourse with a corpse commits an I
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 bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 197

A (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
exceeding two years or to both.
(3) If the court has convicted any person of the offence, the court, if it is
B satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.

[148] Finally, s 17 says this:

C 17 Sexual intercourse with non-human
(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.
D
(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.
E (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.

[149] It is our view that all three of the above provisions are caught squarely by
F
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, 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.
G
[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.

H [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.
I
[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
198 Malayan Law Journal [2024] 2 MLJ

offences relating to protection of person and dignity, s 47 falls within Part VI A

which deals with takzir offences relating to 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: B

47 Act of incest
(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 C
ringgit and to imprisonment for a term not exceeding three years and to
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
D
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) 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 E
order any appropriate order.

[155] Section 2(1) defines ‘incest’ as follows:

(1) In this Act, unless the context otherwise requires — F
‘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 the
direct application of Iki Putra, it is our view that incest is a general offence G
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.
H
[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.
I
Section 30

[158] Section 30 provides as follows:

30 Words capable of breaking peace
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 199

A 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 three thousand ringgit or to imprisonment for
a term not exceeding two years or to both.

B [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 of
Parliament’s power to legislate on ‘criminal law’. The argument adopted in this
regard is similar to the ones raised against s 11.
C
[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 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
D 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 and
security? In our view, that phrase can be read down in light of the preceding
E 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 uttered or disseminated
words that are contrary to hukum syarak.
F
[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
G
State List which states in relevant part:
… the control of propagating doctrines and beliefs among persons professing the
religion of Islam; …

H [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 of
religions other than Islam to Muslims. This includes the propagation of any
views contrary to accepted interpretations of Islam contrary to the accepted
I tenets of hukum syarak in Malaysia. An example of this would be the case of
Maqsood Ahmad which noted the restriction of the propagation to Muslims of
the Ahmadi belief (a State-declared deviant sect 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.
200 Malayan Law Journal [2024] 2 MLJ

[164] Viewed in this way, we agree with the respondent to the extent that there A
is a difference, not so much in wording, but on substance between 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, it is a B
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.
C
[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 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 D
breaching peace.

[167] In this vein, the difference between ss 11 and 30 though seemingly

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 E
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 criminal law’ connotation.
When s 11 is read in the entirety of its context, it is clear that the mens rea
F
requirements of degrading or insulting Islam or a non-Muslim religion is
inseparable from the acts of destruction, defiling or 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 G
primary focus is the wilful uttering or dissemination of words which itself
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.
H
[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
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 I
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
observed, s 30 can be justified on the basis of propagation under art 11(4).
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 201

A Section 31

[171] Section 31 provides as follows:

31 Sexual harassment
B 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.

C
[172] It is patently obvious that s 31, in pith 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.

D [173] We can accept that sexual harassment per se could fall within the ambit
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.

E [174] There is similarly no applicable entry in the Federal List other than
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

F 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, 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.
G
[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.
H
Section 34

[177] This is what s 34 says:

34 Possessing false document, giving false evidence, information or statement
I
(1) Any person who has in possession false document, gives false information
or falsifies evidence for the purpose of being used in any 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.
202 Malayan Law Journal [2024] 2 MLJ

(2) Any person who knows or has reason to believe that an offence has been A
committed under this Enactment or under any written law relating 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 B
exceeding two years or to both.

[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 C
false evidence specifically in relation to proceedings before the Syariah Courts
(see definition of ‘court’ in s 2(1)).

[179] Further, under item 1 of the State List, the States are empowered to
D
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 and in respect only of
any of the matters included in this paragraph, but shall not have jurisdiction in E
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.
However, the matters over which the Syariah Courts can have substantive F
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, organization and procedure of Syariah
G
courts’ because in order to punish the offences in s 34, the pith and 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.

[181] There is no referable entry in item 1 of the State List to suggest that H
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.

[182] On the other hand, the Federal List does contemplate the act of I
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 —
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 203

A …
(e) subject to paragraph (ii), the following:
(i) … the law of evidence; …

B [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
item 4(e)(i) of the Federal List. It is therefore our view that s 34 is caught by the
preclusion clause.
C
[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.

Section 36
D
[185] Section 36 is worded as follows:
36 Anything intoxicating
(1) Any person who uses any intoxicating substance commits an offence and
upon conviction shall be liable to a fine not exceeding five thousand
E 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
F 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.
G
(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.

H [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
words ‘intoxicating substance’ are not defined anywhere in the section or
Enactment 2019.

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

under challenge and it provides:
35 Intoxicating drinks
(1) Any person who, in any opened or closed place, drinks any intoxicating
204 Malayan Law Journal [2024] 2 MLJ

drink which is not liable to the punishment of hadd according to hukum A

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 intoxicating B
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 or has C
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 D
exceeding three years or to both.
(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
E
satisfied, in addition to any punishment prescribed for the offence, may
order any appropriate order.

[188] Given that s 35 deals specifically with ‘intoxicating drinks’, it stands to

reason (applying general canons of statutory construction) that ‘anything F
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 a
clear enough parameter within which it can be deemed to operate.
G
[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 intent is
to criminalise and punish the consumption of virtually anything intoxicating,
by Muslims. H

[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. We now have to
consider whether the preclusion clause applies. I

[191] We ask ourselves whether the criminalisation of ‘anything 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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 205

A 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
including —
B …
(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.
E
[194] It follows that the respondent had no power to make s 36 and it is
unconstitutional on that ground.

Section 37
F
[195] Section 37 stipulates thus:
37 Gambling
(1) Any person who —
G
(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
premises under his possession or control,
H 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 a bet
is placed.
I
(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.
206 Malayan Law Journal [2024] 2 MLJ

(4) The court may order any device, item or thing used in the commission of A
or related to the offence mentioned in subsection (1) to be forfeited and
destroyed, albeit no one is convicted of the offence.
(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. B

[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
with the act of engaging in gambling and the petitioners have withdrawn their C
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 D

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 irrespective of E
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 F

is a regulated leisure activity. It is considered a vice and can certainly fall within
the banner of something against the precepts of Islam within its second broad
category as there is no clear referable entry in item 1 of the State List. This
necessitates asking the question whether the preclusion clause applies.
G
[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
punishing offences in relation to those Items or entries.

[200] As submitted by the petitioners, betting and lotteries is a subject-matter H

under the Federal List which is clearly spelt out by item 4(l) of the Federal List
which states:
4. Civil and criminal law and procedure and the administration of justice,
including — I
…
(l) betting and lotteries.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 207

A [201] We take the view that ‘betting and lotteries’ can clearly and 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
B which should be read together with the general header of item 4 on ‘criminal
law’. The subject matter of s 37(1)(b) is thus caught by the preclusion clause.

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

C that the respondent did not have the power to make it.

Section 39

[203] Section 39 stipulates:

D
39 Reducing scale, measurement and weight
(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
E liable to a fine not exceeding three thousand ringgit or to imprisonment
for a term not exceeding one year 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.
F
[204] The petitioners submit that the subject-matter of s 39 in pith and
substance relates to item 8(f ) of the Federal List which enumerates the
following field:
G 8. Trade, commerce and industry, including —
…
(f ) establishment of standards of weights and measures; …

H [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 clearly,
in pith and substance, deals with matters that fall within the ambit of item 8(f )
I 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.
208 Malayan Law Journal [2024] 2 MLJ

Sections 40 and 41 A

[207] We take the view that ss 40 and 41 can be dealt with concurrently. They
generally relate to financing matters.
B
[208] Section 40 reads:
40 Executing transactions contrary to hukum syarak
Any person who executes any transaction of —
(a) buying and selling; C
(b) ijarah;
(c) rahn;
(d) syarikah or musyarakah;
D
(e) mudharabah;
(f) qardh;
(g) ju’alah;
(h) hiwalah; E
(i) ‘ariyah or i’arah;
(j) wakalah;
(k) dhaman;
F
(l) hibah;
(m) will;
(n) istisna’;
(o) wadi’ah; G
(p) luqatah;
(q) syuf ’ah;
contrary to hukum syarak or any fatwa or any official decision of the Syariah
Advisory Council of the Bank Negara Malaysia or the Syariah Advisory Council of H
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 imprisonment for period not exceeding six months or any appropriate
I
order or any combination thereof.

[209] Section 41 in turns reads:

41 Executing transactions via usury, etc
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 209

A Any person who executes any transaction of —

(a) usury;
(b) ghisy;
(c) gharar;
B
(d) ghasb;
(e) illegal disposal of property;
(f) ihtikar;
C contrary to hukum syarak or any fatwa or any official decision of the 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 five
thousand ringgit or to imprisonment for a term not exceeding three years or to both
D 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
one year and any appropriate order.

[210] The petitioners submit that both ss 40 and 41 pertain specifically to

E 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 —
F …
(k) ascertainment of Islamic law and other personal laws for purposes of federal
law; …

G [211] Item 7 provides quite extensively as follows:

7. Finance, including —
(a) currency, legal tender and coinage;
(b) national savings and savings banks;
H
(c) borrowing on the security of the Federal Consolidated Fund;
(d) loans to or borrowing by the States, public authorities and private
enterprise;
I (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 disposal of public
property other than land of the Federation and of the States;
210 Malayan Law Journal [2024] 2 MLJ

(g) audit and accounts of the Federation and the States and other public A
authorities;
(h) taxes; rates in the federal capital;
(i) fees in respect of any of the matters in the Federal List or dealt with by
federal law; B
(j) banking; money-lending; pawnbrokers; control of credit;
(k) bills of exchange, cheques, promissory notes and other similar
instruments;
(l) foreign exchange; and C
(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 D
on the same matter. More specifically on the subject of Islamic banking 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.
E
[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 of Islamic
banking and for ensuring uniformity and congruity in this field, item 4(k)
specifically empowers Parliament to ascertain Islamic law and other personal
F
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 for the G
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 H
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.
I
[216] 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.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 211

A [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 deal 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.
B
Section 42

[218] Section 42 reads as follows:

C 42 Abuse of halal label and connotation
(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 upon
conviction shall be liable to a fine not exceeding five thousand ringgit or to
D 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 the
company also commits the offence unless he proves that —
E
(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 of
F his office or of his duties in the company and all the circumstances.

[219] The petitioners submit that s 42 is unconstitutional because in pith 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
G part:
8. Trade, commerce and industry, including —
(a) production, supply and distribution of goods; price control and food control;
adulteration of foodstuffs and other goods;
H …
(e) patents; designs, inventions; trade marks and mercantile marks; copyrights;

[220] Item 8 of the Federal List makes it clear, especially from the above entry
I 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 of Item
8 would also include Parliament’s power to legislate on ‘criminal law’. These
212 Malayan Law Journal [2024] 2 MLJ

entries must also be read in light of item 4(k) of the Federal List which, as A
explained above, allows Parliament to ascertain Islamic law for federal law
purposes. In this regard, as food safety and adulteration of food safety is a
matter for Parliament, the use and abuse of the halal logo would also constitute
a matter included in the Federal List.
B
[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 C
List which means that the respondent had no power to make it. We therefore
hold that section 42 is unconstitutional on that ground.

Sections 43, 44, 45 and 48

D
[223] In our analysis, ss 43, 44, 45, and 48 can be dealt with together as they
principally deal with similar subject-matter.

[224] Section 43 reads:

E
43 Offering or providing vice services
(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 to
imprisonment for a term not exceeding three years or to whipping not
exceeding six strokes or to any combination thereof. F
(2) Any person who does any act preparatory to —
(a) prostitute his wife or child or any person in his custody or care; or
(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 G
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) 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 H
order any appropriate order.

[225] Section 44 provides:

44 Preparatory act of offering or providing vice services I
(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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
[2024] 2 MLJ Negeri Kelantan (Tengku Maimun Chief Justice) 213

A imprisonment for a term not exceeding three years or to whipping not

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.
B
[226] Section 45 reads:
45 Preparatory act of vice

C (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
combination thereof.
D (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.

[227] What the above sections have in common is the penalising of ‘vice’ in
E 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;

F [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.

[229] Finally, s 48 reads as follows:

G 48 Muncikari
(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
exceeding six strokes or to any combination thereof.
H (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:

I
(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;
214 Malayan Law Journal [2024] 2 MLJ

[231] Section 43 deals with a situation where a person offers or provides vice A
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.
B
[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. C

[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. D

[234] The petitioners submit that ss 43, 44, 45 and 48 deal with matters of
general criminal law which falls within ‘criminal law’ in item 4 of the Federal
List. We can accept that each of these four provisions relate to criminal offences E
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.

[235] We move to determine if there is any specific Federal List entry that can F
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 and
48 can, in pith and substance, be deemed as ‘purely religious offences’ that G
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.

[237] It is our view that ss 43, 44, 45 and 48 does in pith and substance,
collectively deal with the offence of solicitation of prostitution in one form, H
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 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 I
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 preclusion
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 215

A clause. Sections 43, 44, 45 and 48 are thus unconstitutional on the ground that
the respondent had no power to make them.

CONCLUSION

B [239] We thank all the parties, amici curiae, and watching briefs that have
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
C much dispute in the interpretation and applicability 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.
D
[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
withdrew their challenge against these provisions. Sections 5 and 37(1)(a)
should therefore continue to be presumed constitutional. Further, for reasons
E 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.

[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
F 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 [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
G said provisions are accordingly null and void by virtue of Clauses (1) and (3) of
Article 4 of the Federal Constitution.

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

Judicature Act 1964.
H
Abdul Rahman Sebli CJ (Sabah and Sarawak) (delivering dissenting
judgment of the court):

[243] There are three applications before the court. Enclosure 26 is the
I 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 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.
216 Malayan Law Journal [2024] 2 MLJ

[244] Enclosure 90 was dismissed on the first day of hearing itself on A

17 August 2023 on the ground that there was no legal basis for the Jabatan
Agama Islam Kelantan to intervene. Therefore there are only encls 26 and 68
left to be decided.

[245] With regard to encl 68, the grounds for the application, as averred to B
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:
(a) the petitioners lack locus standi as they fail to show that there is an actual
controversy affecting the rights and interests of the parties; C
(b) the petitioners are not facing any legal action or being charged in the
Kelantan Syariah Court under any of the impugned provisions;
(c) the petitioners’ assertion that there is a real risk that they may be subjected
to investigation by the first respondent is scandalous and frivolous as the D
first respondent is not the authority to enforce the criminal law in the
State of Kelantan; and
(d) the reasons given by the petitioners at the leave stage were purely
speculative, academic and abstract. E

[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 encl 26. F
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 G
dealt with in the course of hearing the substantive application in encl 26 and
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 H
encl 68, both of which have now been concluded.

[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 I
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 Federal
Constitution (‘the Constitution’) will be an exercise in vacuo, ie in isolation
without reference to facts or evidence. It is an untenable situation.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 217

A [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:
I thank both the applicants and respondent counsel for the written submissions that
B 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 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
C 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 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’
D 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 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
E 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 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
F 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
for prayer 1 and 2 of the motion.

[250] Notably the learned judge did not deal with the issue of locus standi
G 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
once leave had been granted.

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

H (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:
(a) s 5 — False claim;
I (b) s 11 — Destroying or defiling places of worship;
(c) s 13 — Selling or giving away child to non-Muslim or morally
reprehensible Muslim;
(d) s 14 — Sodomy;
218 Malayan Law Journal [2024] 2 MLJ

(e) s 16 — Sexual intercourse with corpse; A

(f) s 17 — Sexual intercourse with non-human;
(g) s 30 — Words capable of breaking peace;
(h) s 31 — Sexual harassment; B
(i) s 34 — Possessing false documents, giving false evidence, information or
statement;
(j) s 36 — Anything intoxicating;
(k) s 37 — Gambling; C

(l) s 39 — Reducing scale, measurement and weight;

(m) s 40 — Executing transactions contrary to hukum syarak;
(n) s 41 — Executing transactions via usury etc; D
(o) s 42 — Abuse of halal label and connotation;
(p) s 43 — Offering or providing vice services;
(q) s 44 — Preparatory act of offering or providing vice services;
E
(r) s 45 — Preparatory act of vice;
(s) s 47 — Act of incest; and
(t) s 48 — Muncikari.
F
[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:
(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 G
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;
H
(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 I
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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 219

A 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.
B
[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
bin Abdul Ghani v Legislative Assembly of Sabah [1988] 1 MLJ 171 (‘Abdul
Karim bin Abdul Ghani’) in the following terms:
C
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 CJ (Borneo) with which interpretation I agree.
Article 4(3) and (4) of the Federal Constitution is designed to prevent the possibility
D of the validity of laws made by the legislature being questioned on the ground
mentioned in that article 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. (Emphasis added.)
E
[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
F 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

G learned counsel for the Government of Kelantan, learned counsel for the
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.

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

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
I the State Legislature of Kelantan to enact.

[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
220 Malayan Law Journal [2024] 2 MLJ

Legislatures the power to enact such laws. A

[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 B
any and all forms of syariah criminal law from being within the power of 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. C

[260] In Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021]
2 MLJ 323; [2021] 3 CLJ 465 (‘Iki Putra bin Mubarrak’), Azahar Mohamad
CJ (Malaya) who delivered the supporting judgment came to the following
conclusion at para [118]: D

[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. The true character and substance of
the impugned provision in reality belongs to the subject matter of ‘criminal law’. E
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.

F
[261] The petitioners relied on the following grounds as their legal basis for
challenging the validity of the impugned provisions:
(a) the impugned provisions are beyond the legislative competence of the
Kelantan Legislature;
G
(b) 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 H
(c) 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 reasonably be I
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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 221

A in support dated 25 May 2022 affirmed as follows:

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
B commuted between Kuala Lumpur and Kota Bharu for work 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
C Nik Rashid & Associates.
6.4 I later joined many other law firms as a partner but later quit practice 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
D
Practice).
6.6 Although I moved to Kuala Lumpur, I frequently travel to Kelantan 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,
E 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 Provisions.
6.9 I also intend to retire in Kelantan.
F
[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,
Kelantanese and non-Kelantanese alike and not specific to the petitioners.
G [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:
H 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.

[265] Under the heading ‘Material facts’ this is what the petitioners stated:
I 4. The first Petitioner was born in Kota Bharu, Kelantan in 1961.
4.1 The first Petitioner originally resided in Kelantan with her family until1967.
4.2 She later moved back to Kelantan in 1989 to practice law in Kota Bharu but
commuted between Kuala Lumpur and Kota Bharu for work when required. At
222 Malayan Law Journal [2024] 2 MLJ

certain points, the first Petitioner practiced law in Kuala Lumpur but remained a A
resident in Kelantan.
4.3 The first Petitioner set up her own legal practice in Kelantan in 1997. It was
called Messrs. Nik Elin Nik Rashid & Associates.
4.4 The first Petitioner later joined many other law firms as a partner but later quit B
practice sometime in 2009. She however continued to live in Kota Bharu.
4.5 In 2005, the first Petitioner moved to Kuala Lumpur and returned to legal
practice. The first Petitioner practiced under the style of Messrs. Nik EZ Law
Chambers (now known as Messrs. Nik Elin Nik Rashid Law Practice).
C
4.6 Although she moved to Kuala Lumpur, the first Petitioner frequently travels to
Kelantan as she still has family and properties and assets in Kelantan.
4.7 The first Petitioner frequently travels to Kelantan to manage the said properties
and assets, including having to pay the necessary taxes and charges.
D
4.8 The first Petitioner intends to retire in Kelantan.
4.9 The 2nd Petitioner is the first Petitioner’s daughter. She has a 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 E
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 earlier
where she had affirmed:
6.8 With that, there is a real risk that I might be subjected to the investigative powers F
of the Respondent in relation to the Impugned Provisions.

[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 G
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 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 jurisdiction under H
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 I
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.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 223

A [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
B knockout.

[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
C
court hierarchy is unacceptable and must not be countenanced by this 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.
D
[271] Locus standi is Latin for ‘place to stand’. Black’s Law Dictionary
(Deluxe 9th Ed) defines it to mean ‘the right to bring an action or 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
E 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.

[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
F 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: See
Malaysian Trade Union Congress & Ors v Menteri Tenaga, Air dan Komunikasi &
Anor [2014] 3 MLJ 145; [2014] 2 CLJ 525 (FC) (‘MTUC & Ors’) where it
G 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

must suffer some kind of injury. In Shanti Kumar R Canji v The Home Insurance
H 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 imaginary
injury but it means that the rights of the person have been violated adversely in
reality, and the injury must be physical, mental, monetary, et cetera and not
mere imagination.
I
[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 through judicial activism for the reason that the strict application of the rule
limits the role played by public spirited individuals, non-governmental
224 Malayan Law Journal [2024] 2 MLJ

organisations (NGO) and human rights activists and advocates in litigating A

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 Janata
Dal v HS Chowdhary And Ors [1992] SUPP 1 SCR 226 at paras 95–96 where
the court articulated the rule on locus standi as follows:
B
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 writ … seeking judicial redress for the legal
wrong or injury.
C

[275] Taking Nigeria as another random example, the country maintains

the strict approach. In AG Fed v AG Lagos State (2017) 8 NWLR (PT 1566) 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 of D
jurisdiction. In Liba v Koko (2017) 11 NWLR (PT 1576) 335 at pp 355–356
paras H-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. E

[276] In another case, the Nigerian Supreme Court in Adesanya v President

of the Federal Republic of Nigeria 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 F
of locus standi is surrounded by the same complexities and vagaries inherent in
justiciability. The fundamental aspect of locus standi is that it focuses on the party
seeking to get his complaint before the court, not on the issues he wishes to have
adjudicated.
G
[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 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 H
restrictively.

[278] As for the procedure to be followed in deciding whether to grant or to

refuse leave, the English case of IRC v National Federation of Self Employed and
Small Businesses [1982] AC 617 is instructive. In that case the House of Lords I
held that standing to sue should be considered in two stages. 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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 225

A hearing of the merits of the case, where it may decide that in fact the applicant
does not have ‘sufficient interest’.

[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
B 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 leave’.

[280] There is no reason in my view why this court should not adopt the
C
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 under
art 4(4) read with art 128(1)(a) of the Constitution is all the more reason why
the procedure should be adopted.
D
[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 Supreme
Court, which is equivalent to O 53 of our Rules of Court 2012 (‘the ROC’)
E 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
encl 26 and encl 68 together instead of hearing encl 68 first to be followed by
F 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] 4 MLJ
H 133; [2020] 3 CLJ 593 (‘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:
(1) whether s 12 of the Constitution (Amendment) Act 1983, s 2 of the
Constitution (Amendment) Act 1984 and s 8 of the Constitution
226 Malayan Law Journal [2024] 2 MLJ

(Amendment) Act 1994 were unconstitutional, null and void and of no effect A
on the ground that they violated the basic structure of the Constitution;
(2) 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
case, but the question of law on locus standi that the court was dealing with in B
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 of the C
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
E
being quoted in extenso, given the forensic force of the reasoning. Paragraphs
[43]–[59] are as follows:
[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 F
‘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 dan
Komunikasi & Anor [2014] 3 MLJ 145; [2014] 2 CLJ 525 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 G
constitutional challenge, attempts to sever the requirement of an actual controversy
from the notion of standing would be ‘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’. H
Whether the mere existence of a law gives rise to an actual controversy 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
I
constitutional questions referred to us arises 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 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?
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 227

A [45] Useful illumination on this question can be gleaned from three cases in
different jurisdictions, all relating to similar subject matters: Tan Eng 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
B 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 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.
C
[46] In Tan Eng Hong, the appellant was arrested and charged under 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
D
and sentence. The attorney general applied to strike out the constitutional
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
E 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 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
F arguable violation of constitutional rights occurred when the appellant 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
G constitutional rights. VK Rajah JA rejected the proposition that a prosecution
under an allegedly unconstitutional law must be 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
H challenge its constitutionality could have 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 a violation
may be established in the absence of a subsisting prosecution. In certain cases,
I 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 law constitutes
a violation of the applicant’s constitutional rights in every case (at para [109]). Whether
228 Malayan Law Journal [2024] 2 MLJ

the very existence of an unconstitutional law in the statute books suffices to show a 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 the courts here’ (at [94], [106]).
[50] The court considered certain factors pointing towards a violation of B
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 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 C
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]):
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 D
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
court to determine.
[52] The threat of prosecution must be real and credible and not merely fanciful (at E
[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 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]). F
[53] In the other two cases, no prosecution had been brought against the 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 G
appellants’ claim for a declaration of unconstitutionality was premature and that
there was no 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 found to have been
overshadowed by the presence of the impugned provisions in significant respects. H
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).
[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 I
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 Appeal in Leung.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 229

A 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 that ‘a prosecution is neither in existence nor in
B 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
C affected provisions can only be tested if the 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.
D
[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]).
E
[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 [1979] 2 MLJ 101. In that case, in
F 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 ‘Declaratory
G 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 peace of mind, his freedom and his pecuniary interests …’.
… The fact that the declaration was sought before the statutory powers were
exercised was not a consideration weighing against the grant of that declaration
H … 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 added.)

I [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 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.
230 Malayan Law Journal [2024] 2 MLJ

[59] We find much merit in the reasoning of the cases above. In our model of A
concrete review, courts would not ordinarily treat the mere existence of a law as an
actual controversy suitable for determination. 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 B
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 to act in a
manner which was without precedent’. (Emphasis added.)
C
[287] The words highlighted in bold 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 same case who held, contrary to the majority view, that the
applicant was clothed with the necessary locus standi, not that the dissenting D
judgment has any force of law — it only has persuasive authority (Yong Tshu
Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals [2021] 1 MLJ
478; [2021] 1 CLJ 631) or that I am in agreement with it. Essentially the
reasons given by the learned CJ (Sabah and Sarawak) were as follows:
E
[165] I had the opportunity to deal with this issue of locus standi in Robert Linggi v
The Government of Malaysia [2011] 2 MLJ 741; [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 Abdul Razak &
Ors [2013] 2 MLJ 725; [2013] 8 CLJ 1010.
F
[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 interest or some special interest of his has been adversely
G
affected’ (per Hishamudin Yunus JCA in Manoharan Malayalam.)
[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 be, and it has H
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. (Emphasis added.) I

[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] 2 MLJ 741; [2011] 7 CLJ 373, David Wong Dak Wah J (as
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 231

A he then was) was concerned with the ‘erosion of the rights of Sabah in so far as
the constitution 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’.
B
[289] Pausing here, I must hasten to mention that this court, also through
the 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] 3 MLJ 829; [2023] 5 CLJ 167 (‘Taman Rimba’),
C
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 Siang [1988] 2 MLJ 12 (‘Lim Kit Siang’) no
longer represent the law on locus standi in Malaysia, particularly in public
D 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:
[438] … To deny locus standi in the instant proceedings would in my view be a
E
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 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
F 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
G 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 judgment
described the majority judgment as ‘a retrograde step in the present stage of the
development of administrative law and a retreat into antiquity’, true to his
H 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 court in Taman Rimba laid down a new test for locus standi, that it should
I 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.
232 Malayan Law Journal [2024] 2 MLJ

[293] Given the impact that Taman Rimba has and will continue to have on A
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 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 B
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 encapsulated in the following paras (7)
C
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 respondents were not required to bring D
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 E
the respondents to fall within the categories of landowners set out in r 5(3) as O 53
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’. F
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, G
who were placed to enjoy 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 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 H
detriment or prejudice which was personal to them.

[294] Clearly, in dealing with the issue of locus standi, this court in Taman
Rimba was concerned with O 53 r 2(4) of the ROC vis a vis r 5(3) of the
Planning (Development) Rules 1970. It was decided that under O 53 r 2(4) of I
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 Rules in order to be so conferred with standing to sue.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 233

A [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 leave under O 53 of
the ROC. On the facts, the respondents in that case were found to have met the
B 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.
C
[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
D art 4(4) of the Constitution, and not with judicial review under O 53 of the
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
E 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
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.
F
[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
judicial review applications to challenge administrative actions, the classic
grounds of which are illegality, irrationality and procedural impropriety (see
G Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
per Lord Diplock). These are not factors to consider in determining locus
standi in a constitutional challenge. The pivotal issue in determining locus
standi in a constitutional challenge is whether there is an arguable violation of
the petitioner’s constitutional rights.
H
[299] Order 53 r 2(4) of the ROC on which Taman Rimba is based is
couched in the following language:
Any person who is adversely affected by the decision of any public authority shall be
I entitled to make the application. (Emphasis added.)

[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
234 Malayan Law Journal [2024] 2 MLJ

construed as extending its application to acts of Parliament or the State A

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
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. B

[301] While it is true that common law jurisdictions are liberalising the rule
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
C
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, Malaysia
1997 when he said at p 749: D
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 an action in the court and consequently, the
administrative order then go unreviewed. This will amount to a negation of rule of E
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
F
busybodies to participate in proceedings which they have no legal right to
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 G
the first stage of determining standing to sue, leave should 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 H
comparing them with ghosts, or hantu in Malay.

[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 I
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
court in the present application as it is also a case that concerns the issue of
locus standi in a constitutional challenge.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 235

A [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
as there is a ‘genuine public grievance’ over the constitutionality of any law
passed by the State Legislature.
B
[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
respect of the North and South Highway invalid and for a permanent
C 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.

[306] In dissenting from the majority on the issue of locus standi in Anwar
D 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:
E [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] 4 MLJ 747; [2019] 6 CLJ 1 (‘PCP
Construction’), is also the guardian of public interest. His dual capacity makes the
F 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 legislations which his chambers helped to draft, the
G 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.)

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

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
I petitioners in encl 26. By virtue of art 4(3)(b) of the Constitution, the 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
236 Malayan Law Journal [2024] 2 MLJ

fact that the Attorney General in that case did not object to the applicant’s locus A
standi in coming to the conclusion that the applicant Datuk Seri Anwar
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 B
Attorney-General should be a reason to ‘relax’ the locus standi rule in 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 C
Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1; [2021] 6 CLJ 1
(‘Anwar Ibrahim (2)’) pursuant to r 137 of the Rules and a re-hearing ordered
but in my view the 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 D
flawless and speaks for itself.

[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
E
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).

[311] In Michigan Millers Mut Ins Co v Bronson Plating Co 197 Mich App F
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’.
G
[312] In Straman v Lewis 220 Mich App 448559 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’.
H
[313] I am not aware of any authority within our shores which says that
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 reversed the
decision on other grounds. Even textbook authorities and academic journals I
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

 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 237

A appreciate that the setting aside of the majority decision in Anwar Ibrahim (1)
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
B for the court’s determination were abstract, academic and 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
C
in that case and they were: (i) the circumstances under which the court of final
appeal has jurisdiction to review its own decision; and (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
D be applied in determining locus standi in a constitutional challenge was not in
issue.

[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
E 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 majority in Anwar
Ibrahim (1) was wrong on the law relating to locus standi in a constitutional
F 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 the
G 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
I sustained the first preliminary objection on the ground that the 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 Appeal, the same
preliminary objection was sustained premised on the principle of stare decisis.
238 Malayan Law Journal [2024] 2 MLJ

The appeal was accordingly dismissed. No issue of locus standi was raised by A
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 of the originating summons. At the
High Court, before another judge, the applicant filed a reference application B
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 High Court acceded to the application and, with
C
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
circumstances in which denial of the right to be heard can constitute a ground
D
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 jurisdiction of the court to set
E
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 intertwined with the G
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 action. In H
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 I
by the Supreme Court of Canada in Canada (Attorney General) v Downtown
Eastside Sex Workers United Against Violence Society [2012] 2 SCR 524 where
the principle was laid down as follows:
The traditional approach was to limit standing to persons whose private rights were
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 239

A 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.
2. In exercising their discretion with respect to standing, the courts weigh three
B 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 number of factors, the proposed suit is a reasonable and
effective means to bring the case to court: Canadian Council of Churches v Canada
C (Minister of Employment and Immigration), [1992] 1 SCR 236 , at p 253. The courts
exercise this discretion to grant or refuse standing in a ‘liberal and generous manner’
(p 253). (Emphasis added.)

[321] Three preconditions must therefore be met according to the

D Canadian position, each one of which must be fulfilled, ie cumulatively, before
an applicant is entitled to be conferred with locus standi: (1) the case raises a
serious justifiable issue; (2) the applicant has a real stake or a genuine interest in
its outcome; and (3) the suit is a reasonable and effective means to bring the
E
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 on
F 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
G the majority in Anwar Ibrahim (1) are sufficient for that 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.

[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
I 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, 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.
240 Malayan Law Journal [2024] 2 MLJ

[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 prevail, being B
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 C
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
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 D
majority said:
[64] In the absence of actual controversy affecting the rights of parties, the 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 E
in the case before us. To answer the questions posed would be a significant departure
from the deep-rooted and trite rule 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 F
persuade the Federal Court to undertake such a radical departure from established
principles. In this case the parties have not attempted to do so. (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 G
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 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 H
to clear this hurdle by failing to point out which of their constitutional rights
that are or have been violated by the impugned 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 I
standi. That is a matter that goes to the substantive merits of the challenge and
not to the issue of standing to sue. Reference need to be made 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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 241

A ‘busybodies, cranks and other mischief-makers’. That is 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.

B [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
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.
C
[330] Surely the petitioners cannot be heard to say, even if they wanted to,
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
D
any other form of discrimination under the article. It would be ludicrous for
them to say so.

[331] It needs to be reiterated that the mere fact that the impugned
E 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 insufficient to found a
challenge to the law — there must also be a violation of the constitutional right.
F
[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 inherent
unconstitutionality of the impugned provisions. The constitutional questions
G 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.
H
[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’ by
I 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
242 Malayan Law Journal [2024] 2 MLJ

petition in a factual vacuum. The challenge is based on a purely hypothetical A

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 alone cannot, by
a long shot, amount to a ‘real controversy’ in a challenge so grave as to allege
that the highest law making body of the State of Kelantan had no power to B
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
C
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
D
explanation after they had successfully obtained leave on 30 September 2022.

[336] In Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64 Abdul Hamid

CJ (Malaya) (as he then was) had this to say on the subject:
As regards ground (3), I would firmly say that an action may not be brought to E
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 LJ that ‘it does not extend to
enable any stranger to the transaction to go and ask the Court to express its opinion F
in order to help him on other transactions.’). (Emphasis added.)

[337] Earlier when speaking of whether declaration should issue, the

learned CJ (Malaya) said:
The plaintiff has by his originating summons sought a declaration. It is G
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 Orders (2nd
Ed) by PW Young, on the conditions for declaratory orders and has submitted that H
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. I
‘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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 243

A Foreign Trade [1921] 2 AC 438 at 448 per Lord Dunedin). (Emphasis added.)

[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
B
Islam, are affecting them adversely and posing a threat to their livelihood. It is
understandable if non-Muslims were to raise those grounds in challenging the
constitutional validity of the impugned provisions, but for Muslims like the
petitioners to do so is quite out of this world.
C
[339] The phrase ‘precepts of Islam’ has been explained by Azahar
Mohamad CJ (Malaya) in his supporting judgment in Iki Putra bin Mubarrak,
citing the expert opinion of Professor Emeritus Tan Sri Dr. Mohd Kamal bin
Hassan in Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan
D Malaysia, intervener) and other applications [2009] 6 MLJ 354; [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 bin Takrib, inter alia, states as follows:
E 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, for the purpose of ensuring, preserving and/or promoting
right beliefs, right attitudes, right actions and right conduct amongst the
F 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). The creed is concerned with right
beliefs and right attitudes (deemed as actions of the heart), the law with right
G 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 considers good
(ma’ruf) or bad (mungkar), permissible (halal), prohibited (haram), allowable
(mubah).
H

[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’. Absolutely
I 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, the violation of constitutional right occurred when
244 Malayan Law Journal [2024] 2 MLJ

the appellant was arrested and detained under an allegedly unconstitutional A

law even though the charge was subsequently substituted with a different
offence. Moreover, as noted by the court, the threat of prosecution under the
impugned provision was real and not merely fanciful given that the appellant
professed to regularly participate in the criminalized conduct.
B
[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
been arrested and detained under the impugned law. Nor have they professed
to regularly participate in the conduct criminalized by the provisions. This is
C
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 criminalized conduct.

[343] There is nothing in Anwar Ibrahim (1) to suggest that those are valid D
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 an
arguably unconstitutional law is a factor to consider when deciding whether to E
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 F
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 criminalized conduct
or regularly participate in it. G

[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 H
of being arrested and prosecuted for the offence of rape under that 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’. I

[346] What constitutes ‘genuine public grievance’ however may give rise 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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 245

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.

[347] In Iki Putra bin Mubarrak, the petitioner was charged in the Selangor
B Syariah High Court with attempted sexual intercourse against the order of
nature (sodomy) with certain other male persons under s 28 of the Syariah
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
C
‘criminal law’ is the exclusive domain of Parliament.

[348] However, what is important to note with regard to the case is that
unlike the present case the court in that case was not concerned with the issue
D 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 bin Mubarrak v
Kerajaan Negeri Selangor [2020] 4 MLJ 213; [2020] 6 CLJ 133:
(a) that leave was required and necessary as the applicant had shown that his
E
complaint involved the question of the competency of the Selangor State
Legislature on a matter that is in the Federal List; and
(b) the application was not frivolous or an abuse of the court process as the
applicant had shown that he had an arguable case.
F
[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
G
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 bin Mubarrak that entitled him to be conferred with standing to
H sue.

[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
I the State Government had no jurisdiction to execute, enforce or prosecute
under the Enactment. It was argued that the applicant should have 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.
246 Malayan Law Journal [2024] 2 MLJ

[351] No objection was raised by the Selangor Government that the A

applicant had no locus standi to challenge the validity of the impugned
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 B
application for leave.

[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
C
Selangor Government or any other party to the proceedings objected to the
petitioner’s standing to sue at the full hearing. Assuming such objection was
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
D
Constitution.

[353] It cannot therefore be said with absolute certainty that Iki Putra bin
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 E
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 the issue
of locus standi.
F
[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
Legislature, is reproduced again below:
(4) Proceedings for a declaration that a law is invalid on the ground mentioned in G
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 paragraph (a) or (b) of the Clause.
H
[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 determination that
there is an arguable violation of the petitioner’s constitutional rights, that he is I
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.
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 247

A [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 petitioners have been
B ‘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
C
Court’s exclusive original jurisdiction under art 128(1)(a) of the Constitution
and 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.

D [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 standing to
E 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
F locus standi and how it works in a constitutional challenge under art 4(4) 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
G
resided in Kuala Lumpur outside the State of Kelantan. The 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
H resident in the State of Kelantan, it is territorial. Which is to say that any Muslim
who 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
I 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 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
248 Malayan Law Journal [2024] 2 MLJ

government contract to a private company. He was talking of a ‘genuine public A

grievance’ as the government 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.
B
[361] Obviously therefore, the issue of locus standi that the learned judge
was 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
C
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
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. D

[362] That is one factor that separates Lim Kit Siang from the present case.
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 E
Lim Kit Siang and Taman Rimba are not relevant in determining whether leave
should or should not be granted in a constitutional challenge under art 4(4) of
the Constitution.

[363] I am compelled to point this out with no pleasure in mind because F

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
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 G
does not require the applicant to first of all show an arguable violation of his
constitutional rights before locus standi can be conferred.

[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 H
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 minority
judges, particularly as reflected in the judgment of Abdoolcader SCJ, reflects the
I
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 the present as it presents a rational and coherent
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 249

A development/progression. (Emphasis added.)

[365] I have mentioned art 128(1)(a) of the Constitution without

reproducing it. The article stipulates as follows:
B 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 provision with respect to a
C 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
constitutionally expressed to be ‘to the exclusion of any other court’ must be
D 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 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
E with.

[367] The majority in Anwar Ibrahim (1) was therefore right in requiring
the applicant in a constitutional challenge to establish an arguable violation of
his constitutional rights in addition to being ‘adversely affected’ and having a
F
‘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
Taman Rimba.
G
[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. If
H 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 court of last
I 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.)

[369] The learned judge was of course referring to the exclusive original
250 Malayan Law Journal [2024] 2 MLJ

jurisdiction of the Federal Court to hear challenges on the competency of the A

Federal or State Legislatures to make law. In Iki Putra bin Mubarrak, the
learned Chief Justice made a very pertinent point when Her Ladyship said at
para [29]:
The original jurisdiction of this court is exclusive simply because of the gravity of B
the allegation that the relevant Legislature has no power to make that law. This is
clearly suggested by Suffian LP in Ah Thian at p 113 (MLJ), as follows:
The jurisdiction is exclusive to the Federal Court, no other court 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. C

[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
its rightful place of importance, not because merits of the case is less important
D
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.

[371] The guiding principle is that the court should refuse locus standi to E
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 government, which F
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 bin Mubarrak, extra care must be taken in
dealing with the case, which was referred to during submissions. It needs to be G
re-emphasised that it was not a case on locus standi. In fact the issue of locus
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.
H
[373] There was some discussion on jurisdiction by the court but it was on
the jurisdiction of the civil court vis a 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 a vis the petitioner’s standing to sue. The fact that the
petitioner in that case was actually prosecuted for attempting to commit the I
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.

[374] What is clear is that Iki Putra bin Mubarrak was decided purely on the
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 251

A merits and is not authority for saying that prosecution, threat of prosecution, or
regularly participating in the criminalized conduct under the impugned
provisions provide valid basis for conferring locus standi, either at the leave
stage or at the full hearing.

B [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 to
maintain the present action. In any case, this assertion had been abandoned in
C
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 criminalized by the impugned provisions.

D [376] In Croome and Leung TC, the two cases cited in Anwar Ibrahim (1), no
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
E that they had locus standi even though the State had not yet invoked legal
proceedings to enforce the criminal law against them.

[377] The petitioners on the other hand have not shown how their personal
lives as Muslims have been ‘overshadowed in significant respects’ by the
F 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
G 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 first
H 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.
I
[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
252 Malayan Law Journal [2024] 2 MLJ

Constitution to challenge the constitutional validity of the impugned A

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 bin Abdul Ghani). To that I B
would add that this court, being the apex court, must not condone any abuse
of its 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.
C
[381] In Anwar Ibrahim (1), my learned sister Nallini Pathmanathan FCJ
gave ‘Holocaust-type laws’ as extreme examples of ‘exceptional laws’ that 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.
D
The Concise Oxford English Dictionary (11th Ed, 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.

[382] To put the matter in perspective, the word ‘holocaust’ is associated E

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 are
nowhere close to holocaust-type laws by any wild stretch of the imagination. F

[383] In the first place the impugned provisions are only applicable to
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 G
exceptional about the impugned provisions. On this score, the petitioners’ case
on locus standi must also fail.

[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 H
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.
I
[385] With due respect to learned counsel, the argument flies in the face of
Wong Shee Kai v Government of Malaysia [2022] 6 MLJ 102; [2022] 10 CLJ 1,
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 court was
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 253

A 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, it was still
open to the court, in order to guard its exclusive original jurisdiction from abuse, to
B
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.
C
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
D struck out as a matter of course. The power to set aside the previously-granted leave
order is within the ambit of the inherent powers of this court. If at all a statutory
provision is required for it, it is rule 137 of the Rules of the Federal Court 1995.

[386] The issue therefore is one of jurisdiction so that leave that has been
E granted without jurisdiction is liable to be set aside. In Wong Shee Kai, the 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
F panel eruditely surmised in her judgment, the petition ‘disclosed an
inconsistency challenge poorly disguised as an incompetency challenge’.

[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
G
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.

H [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 respect to any matter
I 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;
254 Malayan Law Journal [2024] 2 MLJ

(b) if the law was made by the Legislature of a State, in proceedings between A
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 party to any such proceedings brought for the B
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
C
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. His
D
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 E
the State Legal Advisor of Kelantan, he had made the Kelantan 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 F
opposition needs to be tidied up.

[391] It would have been of great assistance to the court if the Federal
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 G
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 vis a 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. H

[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
jurisdiction. Put another way, the grant of leave cannot confer jurisdiction I
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
 Nik Elin Zurina bt Nik Abdul Rashid & Anor v Kerajaan
Negeri Kelantan (Abdul Rahman Sebli CJ (Sabah and
[2024] 2 MLJ Sarawak)) 255

A 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
B art 128(1)(a) of the Constitution. I therefore reject counsel’s argument that
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

C petitioners in the present case is no better than the position of the petitioner 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.
D
[395] In both Wong Shee Kai and in the present case, this court had/has no
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
E petitioners who have no right to appear before it.

[396] In a sense the petitioners’ position is worse than that of Wong Shee Kai
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
F
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.

[397] The petitioners on the other hand filed their case in the right court
G 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.
H 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.

Declaration sought granted with exception of ss 13 and 30 of the 2019 Enactment

which were valid and constitutional.
I
Reported by Ashok Kumar