Amid claims of irregular procedure, lawyer says no need for Putrajaya to intervene in Kelantan constitutional challenge

Malay Mail

KUALA LUMPUR, Feb 13 — The lawyer for Nik Elin Zurina Nik Abdul Rashid and her daughter Tengku Yasmin Natasha Tengku Abdul Rahman has denied any procedural irregularity in challenging Kelantan shariah enactment, saying that including the federal government as a respondent is unnecessary.

Amid claims made by Former Court of Appeal Judge Hamid Sultan Abu Backer who said the application was a “non-starter” without the participation of the federal government and the Attorney General (AG), lawyer Surendra Ananth told Malay Mail that the government opted not to intervene in the case to avoid conflicting with the Kelantan state government and disrupting the relationship between the two governments.

“The federal government was fully aware of Nik Elin’s case. The granting of leave on September 30, 2020, and the two hearings before the Federal Court in 2023 were heavily publicised.

“The Prime Minister (Datuk Seri Anwar Ibrahim) concluded that it would be best if the federal government did not intervene in the case as it would be forced to take an inconsistent stand with the Kelantan state government, thus affecting the relationship between the two governments,” he said.

Lawyer Surendra Ananth speaks to reporters at the Palace of Justice in Putrajaya September 22, 2020. — Picture by Shafwan Zaidon

Lawyer Surendra Ananth speaks to reporters at the Palace of Justice in Putrajaya September 22, 2020. — Picture by Shafwan Zaidon

Surendra further pointed out that crucial information had been disregarded in Hamid Sultan’s evaluation.

Citing Article 4 of the Federal Constitution which allows any party to challenge a federal or state law’s validity, he said this requires permission from a single judge of the Federal Court to ensure the challenge is not frivolous.

Surendra explained that the challenging party only needs to name the relevant government — in this case, the Kelantan state government, which Nik Elin and her daughter duly did.

“If any concerned citizen can challenge a governmental decision that has serious public repercussions, why can’t the same be said for an unconstitutional law? Both organs, which are the Executive and Parliament, are subject to the Federal Constitution.

“While it is perfectly fine to criticise judgments of the court, it is imperative to ensure all relevant information is disclosed so the public is not misinformed. This is more so when the views are expressed by members of the profession,” he added.

Surendra said all relevant information, including the federal government’s stance, was officially presented before the Federal Court through an affidavit affirmed by Nik Elin.

This, he said, ensured that the court was fully aware of the government’s position.

Also weighing on the same matter, lawyer Alex Anton Netto opined that excessive emphasis on procedural irregularities is unnecessary unless it impacts the substantial or meritorious aspects of the case.

He asserted that lawyers simply need to exercise greater caution in the application of the law.

“The over emphasis on procedural compliance can sometimes overshadow the justice and public interest a case serves. The legal profession and system is not a creature beholden to its forms and rigid rulings.

“It is evolving, flexible and continuously meeting the needs of the people it serves,” he added.

Lawyer Alex Anton Netto opined that excessive emphasis on procedural irregularities is unnecessary unless it impacts the substantial or meritorious aspects of the case. — Picture courtesy of Alex Anton Netto

Lawyer Alex Anton Netto opined that excessive emphasis on procedural irregularities is unnecessary unless it impacts the substantial or meritorious aspects of the case. — Picture courtesy of Alex Anton Netto

When asked about instances where procedural irregularities might occur and their impact on legal cases, he explained that regarding affidavits, there is a 14-day window to file the Affidavit in Reply and if the deadline is not met, the court has the authority to ignore it.

Alex said disregarding the Affidavit in Reply implies that the opposing party’s affidavit was never officially addressed, leading to the assumption that it was admitted due to either a non-reply or, in this scenario, a delayed response.

On the other hand, lawyer Datuk M Reza Hassan said he echoed the sentiments of Hamid Sultan, emphasising that procedural irregularities, in this case, are a matter of public interest.

He said according to Hamid Sultan’s opinion, the absence of the Attorney General (AG) and federal government is considered a procedural irregularity as it is incurable under the law.

“I think it is right because the entire proceedings concern public interest and because it concerns public interest, then the AG must be a party to the proceedings so from that point alone is a non-starter.

“Because they are not a party to the proceedings, does it mean the absence of AG and the federal government equate to procedure regularity in the state of this particular case?” he said.

However, Reza also acknowledged the differing opinions, mentioning that some argue even if the AG is absent in proceedings involving high public interest cases, the court could use its discretion to deem it a minor procedural irregularity, allowing the case to proceed.

He further emphasised the significance of adhering to established court rules governing legal procedures.

“For instance, the mode of proceedings, and let’s say certain causes of action have already been determined by the rules, like using a writ of summons.

“If a mistake occurs, such as a lawyer filing an originating summons instead, it doesn’t render the entire proceedings null and void, it is considered an irregularity,” said.

He explained that despite initial errors, the court, through its discretionary powers, can rectify and accept the fact that proceedings were mistakenly instituted.

This, he said, showcases the legal process’s adaptability to correct irregularities while upholding principles of justice.

Yesterday, Hamid Sultan was reported by Free Malaysia Today (FMT) saying that the proceedings initiated by Nik Elin and her daughter to challenge specific provisions in the Kelantan Shariah Criminal Enactment were irregular and could be set aside.

He said the application was a “non-starter” without the participation of the federal government and the AG.

He called on the AG to intervene, pointing out the procedural miscarriage of justice in a case of public interest.

Additionally, he criticised the majority for not refusing to hear the motion due to the absence of necessary parties and questioned the “silence” of the seven judges in the majority who did not offer separate judgments.