NIK ELIN ZURINA NIK ABDUL RASHID & ANOR v. KERAJAAN NEGERI KELANTAN
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ABANG ISKANDAR PCA
MOHAMAD ZABIDIN MOHD DIAH CJ (MALAYA)
ABDUL RAHMAN SEBLI CJ (SABAH & SARAWAK)
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
NORDIN HASSAN FCJ
ABU BAKAR JAIS FCJ
[PETITION NO: BKA-2-05-2022(D)]
9 FEBRUARY 2024
[2024] CLJ JT (3)

Abstract – There is a clear demarcation of powers between the Federation and the States. There is no overlap and the primary powers of legislation were given to the Federation including the powers to legislate generally on civil and criminal law, and procedure. Primary powers of legislation are to be accorded to Parliament with certain other limited powers to the States. The States cannot legislate their own written constitutions. By virtue of art. 71(4) of the Federal Constitution ('FC'), 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 provisions for securing compliance with those provisions. Hence, in the dispute as to whether the law is invalid on the ground of lack of power to make the provisions, the law must be examined as a whole to ascertain whether it deals, in pith and substance, with a subject-matter upon which the body making it has the power to enact in accordance with the Legislative Lists of the FC.

CIVIL PROCEDURE: Locus standi – Parties – Action against Kelantan State Government – Declarations that certain sections in Kelantan Syariah Criminal Code (I) [Enactment 14] Enactment 2019 are invalid, null and void – Whether public lawsuit – Whether involved constitutional validity of legal provisions – Whether matter raised subject to judicial scrutiny – Whether types of people or categories of persons to challenge validity of law constitutionally limited – Federal Constitution, arts. 4(3), (4) & 128

CONSTITUTIONAL LAW: Federal and State laws – Constitutionality – Declarations that certain sections in Kelantan Syariah Criminal Code (I) [Enactment 14] Enactment 2019 are invalid, null and void – Whether impugned provisions concern matters in Federal List, Ninth Schedule of Federal Constitution ('FC') – Whether Legislature of State of Kelantan ('LSK') only empowered 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' – Whether purely religious offences which, in pith and substance, falls under Federal List or general criminal law is caught by preclusion clause – Whether LSK has power to make provisions – Federal Constitution, arts. 4(3), (4) & 128

WORDS & PHRASES: 'criminal law' – Federal Constitution – Whether expressly confined to matters included in Federal List – Whether 'general criminal law' includes any law that Parliament can enact to create or punish – Nature of offences – Whether applies to any person in Malaysia irrespective of status, race or religion – Whether grounded upon general preservation of public order, health, safety, security, morality, etc

WORDS & PHRASES: 'precepts of Islam' – Federal Constitution – Whether refers to any matter included in specific entries of item 1 of State List or any other applicable provisions of Federal Constitution and purely religious offence – Whether purely religious offence relates to aqidah, sanctity of Islamic religion or its institutions and purely relating to morality in Islam