PUTRAJAYA, Oct 20 ― The Federal Court today dismissed an attempt by three Gerakan members to challenge the constitutionality of Kelantan’s law on hudud after finding that the trio had failed to state whether they were Muslims.

Federal Court judge Datuk Zaharah Ibrahim rejected their application for leave to challenge the state government's jurisdiction to approve the law after accepting the Kelantan government’s argument that only those affected by the Islamic penal code should mount such a challenge.

“There is no statement in any affidavit of the applicants how they have or will be affected. The law being challenged is only applicable to Muslims, yet none of the affected stated they are Muslims,” she said in her decision after hearing arguments from both sides.

The point was raised earlier during submissions by Kelantan’s counsel Sulaiman Abdullah who had argued that the court should only permit constitutional challenges by those whose interests have been affected by the state’s enactment on hudud.

Before accepting the argument, however, the judge had asked, “Why do you need to have been prosecuted and convicted before you can proceed to challenge and your application not deemed to be frivolous?”

But Sulaiman insisted that it would not be too late to mount the challenge, later saying: “In this present case, nowhere do the applicants say they are doing or contemplating anything that would render them liable to proceedings under the impugned law.

“If we go by name, we assume the first applicant is Muslim, then that raises the question of the second and third applicants who do not have Muslim names and do not say they are Muslims, how would they say they are affected?”

Senior federal counsel Suzana Atan, who represented the federal government, argued that the Gerakan trio had not specified which provision in the Kelantan hudud law they were challenging.

Suzana similarly argued that only Muslims should be allowed to challenge the hudud law.

The Gerakan members' lawyer Datuk Seri Gopal Sri Ram saidthe legal challenge by way of Article 4(4) of the Federal Constitution was not frivolous or vexatious, arguing that the Kelantan government had exceeded its constitutional powers when making the state law on hudud.

“The law that has been enacted seeks to deal with criminal and evidential matters, which are only within the powers of the Parliament to enact,” the former Federal Court judge said.

Sri Ram also argued that all citizens are allowed to mount this challenge as it is a constitutional remedy, and does not have to be a situation where an applicant's' interests have been affected.

“If a citizen is not given the right to make a challenge, then the constitutional remedy will be subject to requirements which the Constitution itself doesn't provide for,” he said, also arguing that the Federal Court had itself recently decided that there cannot be a reading of words into the Constitution.

On May 8, three Gerakan members ― Tuan Mat Tuan Wil, Soh Hoon Lee and Ching Mon Sie ― filed an application at the Federal Court to ask for leave to challenge the Kelantan hudud law's constitutionality.

The Kelantan government was named as the respondent in the trio's case, while the Federal Court last month allowed the federal government to be an intervener and be part of the lawsuit.

Hudud exists as a law in PAS-ruled Kelantan in the form of Kelantan Syariah Criminal Code II 1993, which the Kelantan state legislative assembly amended this March 19.

Royal assent for the amendment was granted on April 23, while the amendment was gazetted on August 27.

Currently Kelantan and Terengganu have state laws on hudud, but both states have yet to be able to enforce the strict Islamic penal code as the punishment prescribed exceed the limited punishment that the Shariah courts are allowed to impose.

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