FEBRUARY 13 — On February 11, 2024, retired Court of Appeal Judge, Datuk Hamid Sultan Abu Backer (former judge), was reported by Free Malaysia Today as having said that the proceedings initiated by Nik Elin and her daughter to challenge certain provisions in the Kelantan Syariah Criminal Enactment (the Enactment) are irregular and can be set aside. He said that the failure to name the federal government as a party was fatal “as the position of the federal government must be part of the record in the case”. He also made remarks against the Judge granting leave and the 7 other judges forming part of the majority who did not write separate judgments.

The judiciary cannot delve into the arena to defend itself. It is up to the AG or members of the legal profession to defend the Judiciary when necessary. With respect, the former judge’s view cannot stand, especially since critical information has been missed out.

First, Article 4 of the Federal Constitution allows any party to challenge a federal law or a state law on the ground that Parliament (for federal law) or the State Legislature (for state law) had no power to make the law. The challenging party must first get permission from a single Judge of the Federal Court. This is a filter process to ensure the challenge is not frivolous. The law only requires the challenging party to name the relevant government. For a challenge on a state law, it would be the relevant state government. In this case, Nik Elin and her daughter named the Kelantan state government.

Second, the federal government is entitled to be a party any proceeding where a state law is challenged (for a challenge on a federal law, it must be named as a party). This is up to the federal government.

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Third, the federal government was fully aware of Nik Elin’s case. The granting of leave on September 30, 2022 and the two hearings before the Federal Court in 2023 were heavily publicized. In fact, the Prime Minister (PM) discussed this specific case in Parliament on November 21, 2023.

Lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter leave the Palace of Justice following the Federal Court’s decision to strike down 16 out of 18 provisions under the Kelantan Shariah criminal enactment as unconstitutional. — Picture by Sayuti Zainudin
Lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter leave the Palace of Justice following the Federal Court’s decision to strike down 16 out of 18 provisions under the Kelantan Shariah criminal enactment as unconstitutional. — Picture by Sayuti Zainudin

In his written response to questions posed on the federal government’s stand, he made known the AGs view, that is the laws under challenge were invalid as there are existing federal laws on the subject. This view was based on an earlier Federal Court decision. The PM concluded that it would be best if the federal government not intervene in the case as it would be forced to take an inconsistent stand with the Kelantan State Government, thus affecting the relationship between the two governments. The federal government made a decision not to intervene in this case.

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Fourth, the written response above and the hansards of the parliamentary sitting were put on record before the Federal Court by way of an Affidavit affirmed by Nik Elin. Thus, the federal government’s position was before the court.

Fifth, whilst the former judge is correct to say that a proceeding can be set aside for a breach of natural justice, no such breach happened here. All the necessary parties were heard. The federal government did not want to intervene, and its position was put on record. In any event, no federal laws were affected or even made the subject of challenge. No party took the position that any federal law was invalid.

Sixth, the former judge’s rigid view on locus standi is, with respect, surprising. Locus standi refers to a party’s right to sue. As the former judge rightly pointed out, this is a case of public interest as it involves the validity of laws.

The former judge was the dissenting judge for Indira Gandhi’s case in the Court of Appeal. His stand was eventually vindicated by the Federal Court when Indira Gandhi’s appeal was allowed. In his dissenting view, the former judge criticised the strict view on locus standi earlier stated by the majority of the Supreme Court in the famous Lim Kit Siang case, where Lim has questioned the governmental decision on the North-South expressway. The former judge said in his dissenting judgment:

“Arguably, Lim ‘s case exposes judicial disaster in the administration of justice when by the court’s decision the court’s door to seek issues related to accountability, transparency and good governance which is the soul of rule of law, was more or less closed by advocating ‘locus standi’ of the litigant to question the policy of the Government. Professor Andrew Harding was subtle in his observation on the damage done by Lim ‘s decision in public law field in contrast to the former Federal Court judge, Gopal Sri Ram. To put it bluntly, both the jurists in my view are saying the ‘soul’ of rule of law is necessary to check excesses by public decision makers to ensure economic success as well as fundamental rights in any democratic nation.”

If any concerned citizen can challenge a governmental decision which has serious public repercussions, why can’t the same be said for an unconstitutional law? Both organs i.e. the Executive and Parliament, are subject to the Federal Constitution.

While it is perfectly fine to criticise judgments of the court, it is imperative to ensure all relevant information is disclosed so the public are not misinformed. This is more so when the views are expressed by members of the profession.

* Surendra Ananth is an advocate and solicitor in the High Court of Malaya. He was the solicitor for Nik Elin and her daughter in their constitutional challenge.

**This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.