KUALA LUMPUR – Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli dismissed Kelantan-born lawyer Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Nastasha Tengku Abdul Rahman as “phantom busybodies”.
Among the panel of nine justices, Rahman, who is the only dissenting judge, argued that the duo lacked legal standing to challenge the Kelantan Shariah Criminal Code (I) Enactment 2019.
He asserted that they failed to demonstrate how the contested provisions violated their constitutional rights and emphasised that they were never charged under the enactment. Furthermore, he highlighted that the provisions were only applicable in Kelantan.
“We all have fear in life… but if it involves challenging state law, then it needs to include how the provisions would violate their rights. Otherwise, it will only be an abuse of the court process.
“Moreover, the issue of their legal standing should be clarified first and foremost, as it is not appropriate for the panel of justices to exercise its inherent jurisdiction to hear the petition if the duo does not have legal standing in the first place.
“It is of utmost importance for the judiciary to ensure that only petitioners with locus standi are allowed to continue their challenges,” he said when reading out his dissenting judgement for over two hours after Chief Justice Tun Tengku Maimun Tuan Mat read out the majority 8-1 decision against the duo’s challenge earlier today.
Earlier, Tengku Maimun delivered the majority ruling in favour of Nik Elin and her daughter when the Federal Court struck out 16 out of 18 provisions challenged by the duo.
The duo, in 2022, initiated a constitutional challenge against 20 provisions under the enactment. However, they dropped two sections, namely Section 5 (false claims) and Section 37 (gambling), at the onset of the suit hearing.
Today, the majority of justices decided that the retracted provisions are legal.
Apart from these two, Tengku Maimun also said that Section 13 (selling or offering children to individuals who are not of the Muslim faith or to morally objectionable Muslim individuals) and Section 30 (language that has the potential to incite unrest or disturb public order) out of the remaining 18 remaining provisions are legal.
This left 16 provisions that today’s panel of justices declared null and void, including Section 14 (sodomy) and Section 48 (a person acting as a procurer between a female and male for prostitution purposes). – February 9, 2024