updated version The Federal Court today granted leave to a lawyer cum politician to apply for a declaration to nullify Kelantan's 1993 Syariah Criminal Code (II) Enactment.

The court also granted the leave to Mohamed Zaid Ibrahim to seek another declaration that the PAS-led state government has no legislative power to make any criminal laws.

Chief Judge of Malaya Ahmad Fairuz Sheikh Abdul Halim granted the leave after finding that there are triable issues in his motion. No date has been fixed yet as to when the court will hear Zaid's application.

He also ordered Zaid's counsel Paul Ramachandran to amend his client's notice of motion to include the fact that the enactment has received the state's royal assent, the information of which was revealed by intervenor Attorney-General (AG) Abdul Gani Patail.

Though the enactment has received the state Sultan's consent, it is yet to be implemented in the state.

Ahmad Fairuz made the decision after a short deliberation on the three-hour submissions made by Paul, the state's counsel Sulaiman Abdullah, Gani and Bar Council president Mah Weng Kwai who was allowed to hold a watching brief.

Earlier Paul argued that the implementation of the enactment will affect his client's constitutional rights and that the law should be annulled as it contained provisions for criminal offences, a power given only to the parliament.

He said that Zaid, who is also the Kota Bharu Umno division chief, has locus standi (legal standing) to make the motion as he is a Kelantan resident with strong involvement in social matters.

"If the court feels that the applicant has no locus standi , we submit that AG's intervention in this motion has dispensed the requirement of locus standi as a matter of law," said Paul.

He also disagreed with the state's contention that the application is frivolous, stating that there are triable constitutional issues to be decided and urged that leave be granted.

Public interest

Gani also agreed that the motion has merits and asked that leave be granted considering that it involved public interest.

"The enactment has posed a threat to the fundamental liberties enjoyed by the public in general. It will not only effect the Muslims residing in Kelantan but from other states as well when they visit the state," he said.

Mah said that the Bar Council supports the motion and agrees that there are serious issues of law to be argued in the interest of the public.

In his reply, Sulaiman urged the court to dismiss Zaid's motion as the applicant has failed to express any specific issues which had violated his fundamental liberties. He said the court cannot act as an advisory body to advise on the validity of an enactment which has yet to be enforced and proved to have violated anyone's rights.

"They have not shown anything tangible. They are throwing the whole law to the court and seek the court's ruling on its validity. Surely, that cannot be right," he said.

AG's intervention

He also argued that the AG's intervention does not dispose Zaid's burden to prove locus standi and urged the AG to use the constitution to confront the validity of the enactment.

"The AG chose not to challenge the enactment frontally, but rather, seemed to be sheltering behind an individual's application through intervention," he said.

Gani stood to object to Sulaiman's statement which he described as "an unbecoming statement from such an eminent lawyer" and that he was disgraced by it.

The judge told Sulaiman not to be "so descriptive" in his argument, adding the word "shelter" may give an impression that the AG has a weak stand on the matter.

Continuing his argument, Sulaiman said that Zaid's affidavit revealed that the enactment has not been given a royal assent which means that it cannot be enforced as yet.

"No amendment has been made to that fact to state otherwise. If there is no royal ascent then the motion cannot stand," he said.

However, Gani said that royal assent had been given and read a letter written to him by Kelantan's state legal adviser stating that enactment has been approved.

"It also states here that the law had been taken to the parliament by state assemblyman with a view to amend the constitution so that the enactment can be implemented," said Gani.

Sulaiman said the information only proved that the motion is frivolous as the state does not propose to implement the law until the constitution is amended.

"Since the motion was not done properly, it then should be struck out due to its irregularity," he said.

However the court views that the motion should not be thrown out on mere technicalities.