Kelantan Shariah Enactment Case Raises Questions About Constitutional Challenge Process

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From Ibrahim M Ahmad
Over the weekend, I read with great interest the views of retired Court of Appeal judge Hamid Sultan Abu Backer on the constitutional law case involving the Kelantan Syariah Criminal Code (I) Enactment 2019, and the response by lawyer Surendra Ananth who represented the successful petitioners.
n his response, Surendra said Article 4 of the Federal Constitution allows any party to challenge a state enactment on grounds that the state legislature had no power to enact it.
He says that to do so, an intended petitioner must first get permission (or leave) of a single Federal Court judge. That is entirely correct, and that is where the locus standi argument comes into play.
It goes without saying that “locus standi” is a concept well entrenched in law, and that it must be interpreted in accordance with existing procedural law and with reference to case law developed both in Malaysia and other leading law jurisdictions.
No doubt, the petitioners in the case in question secured leave, but Justice Rahman Sebli, the Chief Judge of Sabah and Sarawak, who wrote the sole dissenting judgment, had this to say:
“With all due respect to my learned brother who granted leave in the present case, I have to say with regret and in all humility that his grounds of decision do not show that he had adequately applied his mind to the law on locus standi and how it works in a constitutional challenge under Article 4(4) of the constitution. What he did was to gloss over the issue of locus standi in four sentences[.]”
In fact, Justice Rahman dedicated his entire 72-page judgment to how the issue of locus standi ought to be approached in a challenge under Article 4(4) of the constitution.
He disagreed with the majority opinion which held that the locus standi test “ought to be relaxed as much as possible to allow any public-spirited person to file a public lawsuit provided that he has some interest in the matter.”
In an 88-page judgment on behalf of the majority, Chief Justice Tengku Maimun Tuan Mat said:
“Giving the respondent’s proposition its deepest possible consideration, what they suggest is that if a law has been passed either by Parliament or the state legislatures, and it is constitutionally invalid, then going by the rules of locus standi the courts must pause on deciding the validity of that law until in effect the ‘correct person’ shows up before the courts to challenge that law.
“All citizens (and in some cases all persons) are entitled to rely on the Federal Constitution for protection and to approach the Federal Court for a competency challenge under Articles 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 remains 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 validity of that same law.”
There can be no doubt that the majority position broadens the playing field quite considerably. Whether it “opens the floodgates” or not, as judge Hamid suggested, remains to be seen.
It is not my place to say which is the better of the two differing views. Suffice it to say that eight judges agreed that the petitioners had sufficient locus standi to bring the case. Perhaps the apex court will have occasion to revisit this question in another case.
But it did dawn on me that the answer may well be much simpler than that.
To my mind, the “correct person” that the Chief Justice referred to is not any random litigant but none other than the attorney-general (AG) himself, the guardian of public interest.
If he were named as a party or joined the proceedings either on his own accord or at the insistence of the court, and if he was present and agreed that the issue was one that ought to be adjudicated in the public interest, that would surely aid the process.
On that score, judge Hamid’s point makes perfect sense.
Moving on, Surendra’s second point was not one that I understood.
He said: “Second, the federal government is entitled to be a party to any proceeding where a state law is challenged. For a challenge to a federal law, it must be named as a party, but this is up to the federal government.”
The relevant part of Article 4(4) reads: “Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) …. 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 …….”
So far as is relevant, Clause (3) reads: “The validity of any law made by …. 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 ….. 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 ….”
Surendra goes on to say the federal government chose not to intervene in the case. He said:
“The federal government was fully aware of Nik Elin’s case. The granting of leave on Sep 30, 2022 and the two hearings before the Federal Court in 2023 were widely publicised.
“In fact, Prime Minister Anwar Ibrahim discussed this specific case in Parliament on Nov 11, 2023.
“In his written response to questions posed on the federal government’s stand, he made known the AG’s view that the laws under challenge were invalid as there are existing federal laws on the subject.”
With all due respect, that cannot be the way the legal process works.
If the federal government is “entitled” to be a “party” to proceedings, it must be named as a party. At the very least, it must be served with all cause papers so that it is fully appraised of the matter before the court. Only then can it decide whether to participate in the proceedings or not.
If the federal government does not appear in the proceedings, it is for the court to satisfy itself that the federal government does not wish to participate in them. The usual way is for a federal counsel to turn up and confirm this in person or for the AG’s Chambers to say so in writing.
Surendra says an extract from Hansard was included as part of the record in the case to prove the federal government’s stand. Was that statement accepted as a sufficient response from the government? Interestingly, neither the majority nor the minority judgment made any reference to it.
In the grand scheme of things, no injustice has occurred as the court has made the correct decision on the substantive law.
However, the views of judge Hamid, and Surendra’s response, have left many important questions about the process unanswered. - FMT
Ibrahim M Ahmad is an FMT reader.
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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