Inaccurate Proposition & Supporting Case Law in Ng Chin Chai

Inaccurate Proposition & Supporting Case Law in Ng Chin Chai

In Ng Chin Chai (as public officer and Honorary Secretary of the Badminton Association of Malaysia) v Inter-Sports Marketing Sdn Bhd & Anor [2013] 9 MLJ 633 (“Ng Chin Chai”), the learned High Court judge stated the following in passing:

“The decision of the Federal Court in Suwiri Sdn Bhd v Government of the State of Sabah has been followed by the Court of Appeal in various cases such as Woolley Development Sdn Bhd v Stadco Sdn Bhd(No 1) [2011] 6 MLJ 111; [2010] 7 CLJ 73 and Ngan & Ngan Holdings & Anor v Central Mercantile Corp (M) Sdn Bhd [2010] 1 MLJ 822; [2010] 3 CLJ 818.”[1]

            [“Impugned Statement”]

The Impugned Statement, can be broken down as follows:

Proposition: The Federal Court’s decision in Suwiri Sdn Bhd v Government of the State of Sabah (“Suwiri”) has been followed by the Court of Appeal in various cases [“Impugned Proposition”]; and

Supporting Case Law: Woolley Development Sdn Bhd v Stadco Sdn Bhd(No 1) [2011] 6 MLJ 111; [2010] 7 CLJ 73 (“Woolley Development”) and Ngan & Ngan Holdings & Anor v Central Mercantile Corp (M) Sdn Bhd [2010] 1 MLJ 822; [2010] 3 CLJ 818 (“Ngan & Ngan Holdings”) [“Impugned Supporting Case Law”]

Impugned Proposition

At the time of the learned High Court judge’s Grounds of Judgment in Ng Chin Chai, namely 11th March 2013, the Impugned Proposition was inaccurate.

The earliest reported Court of Appeal decision in the Current Law Journal and Malayan Law Journal which adopted Suwiri was Pengarah Jabatan Perhutanan Negeri Selangor Darul Ehsan & Anor v Syarikat Sebati Sdn Bhd [2017] 4 CLJ 101 [“Syarikat Sebati”] on 7th December 2016:

 “In our view, the draft agreement in law cannot be construed as a contract without execution as well as evidence that it has been executed as per the requirement of GCA 1949. (See Suwiri Sdn Bhd v. Government of the State of Sabah [2008] 1 CLJ 123).”[2]

From the time Suwiri was decided (i.e. 21st August 2007) until the present day, Suwiri has not received widespread adoption based on reported Court of Appeal decisions.[3]

A rarity other than Syarikat Sebati would be Glomac Alliance Sdn Bhd v Nordin bin Md Zain [2023] 3 MLJ 393 whereby the Court of Appeal made reference to Suwiri:

“The Federal Court in the case of Suwiri Sdn Bhd v Government of the State ofSabah [2008] 1 MLJ 743 also held that:

“[10] The doctrine of privity of contract is that as a general rule, a contract cannot confer rights or impose obligations on strangers to it, i.e persons who are not parties to it.”[4]

Impugned Supporting Case Law

With all due respect to the learned High Court judge, the Impugned Supporting Case Law are inaccurate.

The Court of Appeal judges in Woolley Development and Ngan & Ngan Holdings made no reference to Suwiri, and hence could not have followed Suwiri.

The following are the cases referred to by the Court of Appeal in Woolley Development:

Meanwhile, the cases referred to by the Court of Appeal in Ngan & Ngan Holdings are as follows:

In light of all of the above, the Impugned Statement should be treated cautiously.

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Inaccurate Proposition & Supporting Case Law in Ng Chin Chai

Can you quote and/or rely on the headnotes of a reported decision?

My learned friend acting for the Plaintiff, in an ongoing dispute, contended that it is improper to quote the headnotes of a reported decision as the headnotes are prepared by the law reports and not by the Court (“Impugned Proposition”):

With all due respect to my learned friend, the Impugned Proposition does not hold water.

A. The headnotes of a reported decision, while prepared by law reports, accurately reflect/record the facts of the case and/or what is held in the full judgment

LexisNexis Malaysia claims, amongst others, the following:

1. About its Lexis Advance product:

“Save time with legal case summaries and headnotes that reflect the holdings and language of the court.”[1] (Emphasis mine)

2. About the Malayan Law Journal:

“Case reports are clearly presented with catchwords, headnotes summarising judgments and annotations of all cases and legislation mentioned in judgments.”[2] (Emphasis mine)

In Re Lee Gee Chong Deceased; Tay Geok Yap & Ors v Tan Lian Chow [1965] 1 MLJ 102, the Federal Court remarked the following regarding the headnotes in Re Lee Siew Kow deceased [1952] MLJ 184 and Er Gek Cheng v Ho Ying Seng [1949] MLJ 171:

“The headnotes to these two cases correctly record what was stated in the judgments as to the law of Singapore.”[3] (Emphasis mine)

B. The Malaysian apex courts have consistently quoted and/or relied on the headnotes of other reported decisions

Examples include:

1. The Federal Court’s decision in Zulkiple bin Mohamad v Public Prosecutor [2022] 1 MLJ 479 which referred to the headnotes of the Singapore Court of Appeal’s decision in Public Prosecutor v Lim Poh Lye and another [2005] SGCA 31:

“[37]  The principle in Virsa Singh was reiterated in Public Prosecutor v Lim Poh Lye and another [2005] SGCA 31 where the Singapore Court of Appeal explained its decision 12 years earlier in Tan Chee Hwee v Public Prosevutor [1993] 2 SLR(R) 493 which appeared to have added a new element to the interpretation of s 300(c). Suffice it if we refer to headnotes (3) and (4) of Lim Poh Lye …”[4] (Emphasis mine)

2. The Federal Court’s decision in Datuk Seri Anwar Ibrahim v Government of Malaysia & Anor [2022] 1 MLJ 1 which referred to the headnotes of the Privy Council’s decision in Hoecheong Products Co Ltd v Cargill Hong Kong Ltd:

The importance of this principle was reiterated by the Privy Council in an appeal from the Court of Appeal, Hong Kong in the case of Hoecheong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 HKC 625. In that case, an interpretation of the force majeure clause in the contract for delivery of goods was not raised by the parties but introduced by the Court of Appeal. The Privy Council held (at the headnotes) …”[5] (Emphasis mine)

3. The Federal Court’s decision in Mkini Dotcom Sdn Bhd & Ors v Raub Australian Gold Mining Sdn Bhd [2021] 5 MLJ 79 whereby Abdul Rahman Sebli FCJ (now CJSS) quoted the headnotes of the Court of Appeal’s decision in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209 in presenting the Court of Appeal’s grounds for allowing the appeal:

“As reported in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209, the reasons for allowing the appeal were as follows (at the headnotes) …”[6] (Emphasis mine)

4. The Federal Court’s decision in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 which made reference to the headnotes of the Federal Court’s decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 and adopted the headnotes of the Federal Court’s decision in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143:

“[34] The dicta of all the three learned judges [in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393] can be seen from the headnotes of the report. What is obvious is the unanimity of their Lordships’ opinions on when the inherent jurisdiction of the court can be invoked in striking out a previous perfected judgment or order …

[36] As regards the appellant’s submission on the court being functus officio and that a fresh suit needs to be filed to strike out a previous regularly obtained order on the ground of fraud, we adopt the finding of this court in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 which we think has settled these issues. The headnotes from the report in that case, which need no further explanation, or expansion, is now reproduced as our answer to those related questions …”[7] (Emphasis mine)

5. The Federal Court’s decision in Dato’ Seri Dr Kok Mew Soon & Ors v Mustapha bin Mohamed [2008] MLJU 919 whereby Zaki Tun Azmi PCA (later CJ) quoted part of the headnotes to Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd:

“The object of the Danaharta Act as well as the way the Act should be construed has been fully discussed in Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd. The issue in Kekatong was whether section 72 was unconstitutional. The court dealt at length with the objects and purposes of the Act. It concluded that section 72 is not unconstitutional. In the course of its discussion, it made a lot of comments and suffice for me to quote part of the headnotes to that case …” (Emphasis mine)

6. The Supreme Court’s decision in Lee Chin Kok v Jasmine Arunthuthu Allegakoen & Ors [2000] 4 MLJ 481 which referred to the headnotes of the Supreme Court’s decision in Kam Mah Theatre Sdn Bhd v Tan Lay Soon [1994] 1 MLJ 108:

“The Supreme Court (Peh Swee Chin SCJ) held in the headnotes as follows at pp 108–109 …”[8] (Emphasis mine)

7. The Supreme Court’s decision in Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd [1989] 2 MLJ 155 which referred to the headnotes of the New Zealand case of Nicholas v Ingram [1958] NZLR 972, and followed the same:

“Finally, the New Zealand case of Nicholas v Ingram [1958] NZLR 972 where the defence was based solely on financial inability to complete. We refer to the headnotes. In an action for specific performance of a contract for the sale of land, hardship on the part of the defendant may operate as a defence. But the hardship must, in general, be such as existed at the time of the contract and not such as has arisen subsequently from a change of circumstances.”[9] (Emphasis mine)

C. The Court of Appeal have consistently quoted and/or relied on the headnotes of reported apex court decisions

Examples include:

1. Lim Meow Khean & Ors v Pakatan Mawar (M) Sdn Bhd (in liquidation) & Ors [2021] MLJU 127 which quoted and relied on the headnotes of the Federal Court’s decision in RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors and another appeal [2016] 1 MLJ 175:

 “[153]  The Federal Court in RHB Bank Bhd v Travelsight (M) Sdn Bhd & Ors and another appeal [2016] 1 MLJ 175 applied the principle of restitution and constructive trust against the developer in liquidation when it wanted to dispose of an office unit where strata titles had not been issued yet and where the end financing bank had been fully paid.

[154]  The Federal Court held as follows as summarised in the headnotes at page 176 …”[10]

2. Noraini bt Mohamed Hadi v Pembangunan Tanah dan Perumahan Sdn Bhd and another appeal [2021] 4 MLJ 152 which quoted and relied on the headnotes of the Court of Appeal’s decision in Besharapan Sdn Bhd & Ors v Agroco Plantation Sdn Bhd & Anor [2007] 1 MLJ 101 and the Federal Court’s decision in Nasri v Mesah [1971] 1 MLJ 32:

 “[150]  Our Court of Appeal had occasion to dispel the misconception that until one becomes a registered owner of land one cannot enter into a valid sale and purchase agreement to dispose it of in Besharapan Sdn Bhd & Ors v Agroco Plantation Sdn Bhd & Anor [2007] 1 MLJ 101; [2006] 4 CLJ 878, where it held as follows at para (1) of the headnotes

[185]  In Nasri v Mesah [1971] 1 MLJ 32, at the headnotes, the Federal Court decided that …”[11] (Emphasis mine)

3. Wong Chu Lai v Wong Ho Enterprise Sdn Bhd (in liquidation) and another appeal [2020] 5 MLJ 762 which quoted and relied on the headnotes of the Federal Court’s decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393:

 “In any case, it is trite law that it is not open ever to set up an estoppel against a statute. To allow estoppel to operate would tantamount to a contravention of statutory provisions. In Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, the Federal Court reiterated the principle that no estoppel can operate against statute. In a supporting judgment, Gopal Sri Ram JCA (as he then was) observed (at the headnotes) that ‘… it is well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law … And the procedural branch of the broad and flexible doctrine of estoppel known as res judicata finds no place in such a circumstance’.”[12] (Emphasis mine)

4. Nur Rasidah bt Jamaludin v Malayan Banking Bhd and other appeals [2018] 3 MLJ 127 whereby Harmindar Singh JCA (now FCJ) quoted and relied on the headnotes of the Federal Court’s decision in Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345:

“… In this respect, we agree that reference to parliamentary reports as an aid to interpretation is permissible. However, the circumstances in which such reference could be made were circumscribed by the Federal Court in Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345 where it was held (at the headnotes) …”[13] (Emphasis mine)

5. Zaharah bt A Kadir (acting as the authorised representative of Abdul Kadir bin Ami, deceased) v Ramunia Bauxite Pte Ltd & Anor [2012] 1 MLJ 192 which quoted and relied on the headnotes of the Supreme Court’s decision in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405:

[155]  Learned counsel for the deceased appellant rightly submitted that every provision of the agreements dated 10 March 1951 and 8 March 1952 must be read in order to gather the intention of both parties. This approach received the approvals of the Federal Court in Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131, and of the Supreme Court in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405, and of the Federal Court in Perkayuan OKS No 2 Sdn Bhd v Kelantan State Economic Development Corp [1995] 1 MLJ 401. And way back in 1957, it also received its stamp of approval of the English Court of Appeal in Addiscombe Garden Estates, Ltd and another v Crabbe and others [1957] 3 All ER 563.

[157]  In Malayan Banking Bhd v PK Rajamani, in allowing the appeal, Mohamed Dzaiddin SCJ speaking for the Supreme Court had this to say (see the headnotes at pp 405–406) …”[14] (Emphasis mine)

Having in mind the foregoing, it is humbly submitted that the Impugned Proposition is incorrect and that one can quote/rely on the headnotes of a reported decision.

The courts have, in some decisions, quoted and relied on the contents of the headnotes of an earlier decision in a binding manner.

Having said that, the exact words or phrases used by a judge in a reported decision would be preferable over the headnotes of a reported decision.

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Inaccurate Proposition & Supporting Case Law in Ng Chin Chai

6 Things About Amicus Curiae

1. Means “friend of the Court”

In Nkgsb Cooperative Bank Limited vs Subir Chakravarty (Civil Appeal No. 1637/2022), the Supreme Court of India made reference to Black’s Law Dictionary’s definition of “amicus curiae”:

“amicus curiae. [Latin “friend of the court”] (17C) Someone who is not a party to a lawsuit but who petitions the court … or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.— Often shortened to amicus. — Also termed friend of the court. Pl. amici curiae”[1] (Emphasis mine)

Naolekar J (later SCJ) remarked the following in Sarla Sharma vs State Of Rajasthan And Ors. AIR 2002 RAJ 301, I (2002) DMC 409, 2002 (1) WLC 178 [“Sarla Sharma”]:

“The term “Amicus Curiae” is a Latin [term] which literally means-a friend [of] the Court. An Amicus Curiae is an advisor of the Court.”[2] (Emphasis mine)

2. Not the same as representing a party in the proceedings

In Leong Kum Loon v Glomac Kristal Sdn Bhd and another appeal [2020] MLJU 778, the Court of Appeal invited a Senior Federal Counsel to attend as amicus curiae and the Court of Appeal stated that:

“Attending as amicus curiae is still a long way off from representing a party to the relevant proceedings.”[3]

In Sarla Sharma, Naolekar J (later SCJ) also observed the following:

“Leave to appear as amicus curiae differs from intervention in its usual sense in that the intervener becomes a party to the litigation, and is bound by the judgment, while, an amicus curiae does not become a party to the proceedings.

An amicus curiae is not a party to any action and does not legally appear for anyone but is merely a friend of [the] Court who so function to advise or make suggestions to the Court.” (Emphasis mine)

3. Meant to aid/assist the Court

Hasnah Hashim FCJ mentioned in passing in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759 that the Federal Court in two prior decisions were aided by the submissions of the amicus curiae:

“As I have alluded the doctrine of basic structure was and had been extensively argued by the parties in both Maria Chin and Rovin Jothy. In both of the appeals this court was aided by the written submissions of amicus curiae.”[4]

In Ng Yuet Mooi v Leong Yee Heim [2020] 1 MLJ 119, Mr. Kan Weng Hin (now Judicial Commissioner) appeared as amicus curiae and the Court of Appeal thanked him for his assistance:

“At the hearing of this appeal, Mr WH Kam appeared as an amicus curiae. He also filed and served written submissions. The court records its appreciation to Mr Kam for his most helpful assistance which have been rendered impartially and professionally.”[5]

4. Not a matter of right

Naolekar J (later SCJ) opined the following in Sarla Sharma:

“The amicus curiae is heard only by leave of the Court and it is within the discretion of the Court. Granting of leave to be heard as an amicus curiae is a matter of favour or grace and not a matter of right but of a privilege. Consent of the parties to the proceedings is not ordinarily essential to the participation of an amicus curiae as participation is of no personal concern of the parties and no party has a cause to complain if the court grant permission to a stranger a privilege of being heard, since no action of the stranger can affect the legal right of any of the parties to the proceedings.” (Emphasis mine)

5. Can be on the invitation of the Court

In the landmark Federal Court decision of Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd & Anor and other applications [2011] 1 MLJ 25, Tun Zaki Azmi CJ remarked the following:

“Several senior members of the Bar listed in this judgment were invited to address the panel on the issues. It was agreed that this case be the test case. While counsel representing the parties in this leave to appeal submitted on behalf of their clients, other counsel were invited to address the court as amicus curiae.” (Emphasis mine)

In Datuk Hj Mohammad Tufail bin Mahmud & Ors v Dato Ting Check Sii [2009] 4 MLJ 165, the Federal Court “invited the Attorney General’s Chambers, State Attorney General’s Chambers Sabah, State Legal Counsel Sarawak, the Malaysian Bar Council, Advocates Association of Sarawak and Sabah Law Association to submit as amicus curiae.”[6]

This was also the case in Johnson Tan Hang Seng v Public Prosecutor [1977] 2 MLJ 66,[7] and Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd [2019] MLJU 1755.[8]

6. Subject to certain considerations in order to obtain leave to appear as amicus curiae

In Jerry WA Dusing @ Jerry W Patel & Anor v Majlis Agama Islam Wilayah (MAIWP) & Ors [2016] MLJU 735, Hamid Sultan Abu Backer JCA held:

“From the above case, it is quite clear where a party does not have a right to intervene but the court takes the view that the importance of the questions involved in the proceedings; the intervention as amicus curiae is permissible. Brennan CJ in the Australian case of Levy has set out some guidelines for consideration to allow an applicant to intervene as amicus curiae and in the article cited above, it has been summarised as follows:

The court must be cautious in considering applications for leave to appear as amicus as the efficient operation of the court could be prejudiced;

The court must be of the opinion that the amicus will significantly assist the court and that any resultant cost to the parties or any subsequent delay will not be disproportionate to the anticipated assistance;

The current parties to the matter must be unable or unwilling to provide the assistance to the court proposed by the amicus that is needed to arrive at the correct decision in the case.”[9] (Emphasis mine)

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Inaccurate Proposition & Supporting Case Law in Ng Chin Chai

5 Things About Open Justice

1. Has several aspects

In Public Prosecutor v Karpal Singh [2002] 2 MLJ 657, Augustine Paul J (later FCJ) made the following observation:

“The concept of open justice has two aspects; firstly, with regard to proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and, secondly, in criminal cases at any rate, all evidence communicated to the court is communicated publicly (see AG v Leveller Magazine Ltd [1979] AC 440). This ensures transparency in court proceedings.”[1] (Emphasis mine)

The Federal Court in Dato’ Sri Mohd Najib bin Hj Abd Razak v Public Prosecutor [2019] 4 MLJ 281 (“Najib Razak”) made a similar observation on one of the aspects of ‘open justice’:

“The overarching theme here is that as far as is possible, court proceedings should be open and accessible to the public in the interests of transparency.”[2] (Emphasis mine)

In Swapnil Tripathi vs Supreme Court Of India AIR 2018 SUPREME COURT 4806, 2018 (10) SCC 639, AIR 2019 SC (CIV) 194 (“Swapnil Tripathi”), a decision of the Supreme Court of India, Dr Dhananjaya Y Chandrachud:

“[Open justice] has both procedural and substantive dimensions, which are equally important. Open justice comprises of several precepts:

(i) The entitlement of an interested person to attend court as a spectator;

(ii) The promotion of full, fair and accurate reporting of court proceedings;

(iii) The duty of judges to give reasoned decisions; and

(iv) Public access to judgments of courts.”[3]

2. A common law concept

In Swapnil Tripathi, Dr Dhananjaya Y Chandrachud stated that:

Open justice is a long-established principle of common law systems.”[4] (Emphasis mine)

3. Has statutory support

Section 15(1) of the Courts of Judicature Act 1964 codified the concept of ‘open justice’:

Courts to be open and public

(1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access:

Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.” (Emphasis mine)

4. Fundamental to a functioning democracy and promotes good governance

This was remarked by the Federal Court in Najib Razak:

“Open justice is fundamental to a functioning democracy and promotes good governance.”[5]

Dr Dhananjaya Y Chandrachud observed in Swapnil Tripathi that:

“[Open justice] rests on a high pedestal in a liberal democracy as ‘a sound and very sacred part of the Constitution of the country and the administration of justice…’1”[6] (Emphasis mine)

5. Not absolute

This was recognised by the Federal Court in Najib Razak:

“Of course, no one is disputing here that open justice is not absolute.”[7]

Section 15(1) of the Courts of Judicature Act 1964 provides an exception to ‘open justice’ as a general rule:

Courts to be open and public

(1) The place in which any Court is held for the purpose of trying any cause or matter, civil or criminal, shall be deemed an open and public court to which the public generally may have access:

Provided that the Court shall have power to hear any cause or matter or any part thereof in camera if the Court is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason so to do.” (Emphasis mine)

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Inaccurate Proposition & Supporting Case Law in Ng Chin Chai

The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

On 9th February 2024, the majority of the Federal Court in Nik Elin Zurina binti Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [Federal Court Petition No. BKA-2-05/2022(D)] [“Nik Elin”] held that the following provisions in Kelantan’s Syariah Criminal Code (1) Enactment 2019 are void:

“… Sections 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47 and 48 …”[1]

(collectively referred to as the “Impugned Provisions”)

Floodgates?

Some quarters have claimed inter alia that Nik Elin’s case is significant as it would open the door to similar legal challenges in relation to Syariah criminal provisions in other states.[2]

At the outset, it is important to note that it is not novel for the constitutionality of Syariah criminal provisions to be the subject of legal challenge.

Pre-Nik Elin, there were recent appellate decisions regarding the constitutionality of Syariah criminal provisions.

The constitutionality of Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 was challenged and the Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 [“SIS Forum”] ruled in 2022 that the provision was “unconstitutional and void, as it is a provision which the [Selangor State Legislative Assembly] has no power to make.”[3]

In Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 323 [“Iki Putra”], the Federal Court held in 2021 that Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995 “… is inconsistent with the [Federal Constitution] and is therefore void …”[4]

The constitutionality of Section 23 of the Syariah Criminal Procedure Enactment 2003 was also the subject of legal challenge not too long ago. In 2022, the High Court ruled that the provision was unconstitutional for being inconsistent and ultra vires the Federal Constitution.[5] The High Court’s decision was later reversed on appeal to the Court of Appeal.[6]

It remains to be seen whether Nik Elin’s case will be a catalyst for further similar legal challenges, or whether Nik Elin merely joins a list of successful challenges to the constitutionality of Syariah criminal provisions.

Substantive Test

In terms of the substantive test, the majority of the Federal Court in Nik Elin’s case merely reiterated the established legal position that:

(a) There are certain matters within Parliament’s legislative power/jurisdiction and State Assemblies cannot legislate on those matters, and vice versa:

“… 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.”[7]

(b) The pith and substance doctrine/test, as espoused in Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 (SC), applied:

“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.”[8]

Nik Elin’s case is not a game changer on the substantive test for constitutional challenges on Syariah criminal provisions as Nik Elin’s case essentially reiterated the legal approach in Iki Putra and SIS Forum.[9]

Locus Standi

On another hand, Nik Elin’s case is significant as the Petitioners were allowed to challenge the constitutionality of the Impugned Provisions despite the absence of any real and actual controversy affecting the Petitioners’ rights [“Lack-of-Locus-Standi Argument”].

For example, the Petitioners in Nik Elin’s case (unlike in Iki Putra) were not charged with committing any offence under the Impugned Provisions.

The Lack-of-Locus-Standi Argument was the main reason for Abdul Rahman bin Sebli CJSS’ dissenting judgment in Nik Elin’s case.[10]

Dr. Hamid Sultan bin Abu Backer, a former Court of Appeal judge, shares Abdul Rahman bin Sebli CJSS’ views on the Lack-of-Locus-Standi Argument in Nik Elin’s case.[11]

On the issue of locus standi, the majority of the Federal Court in Nik Elin went so far as to say that:

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 Articles 4(4) and 128 of the Federal Constitution.”[12] (Emphasis mine)

Nik Elin’s case, if not successfully reviewed by the Federal Court pursuant to Rule 137 of the Rules of the Federal Court 1995, would have notably expanded the test for locus standi for constitutional challenges under Articles 4(4) and 128 of the Federal Constitution.

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