The Federal Court today granted leave to senior lawyer Zaid Ibrahim to challenge the authority of the PAS-led Terengganu government in passing its newly enforced Syariah Criminal Offence (Hudud and Qisas) Enactment 2002.

In allowing the leave application , Justice Pajan Singh Gill declared he was satisfied that the lawyer has an arguable case against the state and should be allowed to initiate an action over the validity of the enactment.

"This is the case of public importance affecting the liberty of the people and I therefore hold that the application for leave must be allowed. The applicant has satisfied this court that he has an arguable case and that his application is not frivolous and vexatious," he said.

The leave will allow Zaid to file a petition against the state government to, among others, seeking declarations under the Federal Constitution that "the state of Terengganu has no legislative power to initiate or pass any legislation for the creation of punishment of any acts punishable under the federal laws".

He is also seeking a declaration that the enactment as "null and void" as the Acts punishable under the enactment are also punishable under federal laws.

Zaid, who is also Kelantan Umno deputy chairman , was granted similar leave by the Federal Court in July last year, to challenge the Kelantan Syariah Code (II) Enactment 1993.

'No legislative power'

This morning, the court heard arguments from lawyers Malik Imtiaz Sarwar and Sulaiman Abdullah who represented Zaid and the Terengganu government respectively, as well as Attorney-General Abdul Gani Patail, who successively applied to intervene in the proceedings.

The court had also allowed Dr Cyrus Das to hold a watching brief on behalf of the Bar Council and the Malaysian Bar.

In arguing his case, Malik said Zaid's application has merit because Terengganu had acted outside its legislative power when it passed the enactment which is also ultra vires the constitution.

"The legislation is the product of an attempt by Terengganu to usurp the jurisdiction and power of the federal Parliament," he said.

"It is not merely the constitutionality of the legislation that is in question. The very power of the state legislative assembly to enact the legislation is (also) challenged," he said.

He said that Article 74 of the Federal Constitution clearly says that the power of the state legislative assembly is limited to matters of personal law only, and that it has no power to enact criminal laws.

In supporting Zaid's action, Abdul Gani said the applications is not "vexatious and frivolous" as several provisions in the enactment cover offences like theft, robbery, murder and manslaughter which are all withing the competency of federal laws.

"Furthermore, the application is similar to that made against the state (in July last year) in which this honourable court had granted leave to the same applicant to commence similar proceedings. On the same basis, we humbly submit that this application be granted," he said.

The court's decision to allow the AG's intervention in this matter showed that it recognised the case as one affecting public interest, Abdul Gani noted.

In this respect, he argued that the question of the applicant's locus standi should not be one of the central issues to be considered by the court.

Locus standi questioned

In objecting to the application, Sulaiman urged the court not to grant leave, saying that Zaid's action was defective because he did not specify which provisions under the law had contravened the constitution.

He said Zaid should not be allowed to make a general accusation against the constitutionality of the provision because this would prejudice the state government, since it would not know which provision it has to defend.

He also claimed that Zaid has no locus standi to initiate the action against Terengganu and that he could not use his social standing in Kelantan (Zaid's home state) to do so.

"Just because the Terengganu is the neighbouring state to Kelantan, should he be allowed to initiate action? He claimed that the enactment has violated his liberty of movement and property ownership, but he has not stated how these rights have been effected," said Sulaiman.

"He must show that his immediate rights are affected...he must specify how his rights have been suppressed."

Sulaiman also argued that there is nothing in the constitution to prevent the state from enacting its own criminal laws and punishments - least of all those related to the religion.

"When passing the enactment, the state had no intention to challenge the constitution or replace the federal criminal laws," he added.

"Among the offences provided for (under the enactment) are the consumption of liquor, qazaf (which protects someone from being unfairly accused of sexual misconduct), zina (carnal intercourse outside marriage) and apostasy... these are not found in the federal laws."

In July last year, the PAS-led Terengganu government had passed the Syariah criminal code. It was enforced with effect from Oct 27 when it was gazetted, with PAS leaders repeatedly rejecting suggestions that this was in conflict with the Federal Constitution.

They have also stated their intention to proceed with enforcement regardless of objections from national leaders, saying that it would be up to the Federal Court to make a ruling on this matter.