Gunn Chit Tuan CJ (Malaya):

[1] This was an application by notice of motion for leave to commence proceedings pursuant to art 4(4) of the Federal Constitution. Articles 4(3) and 4(4) of the Federal Constitution provide as follows:

Article 4(3) The validity of any law made by Parliament or the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter with respect to which Parliament or, as the case may be, the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground or-

(a) if the law was made by Parliament, in proceedings between the Federation and one or more States;

(b) if the law was made by the Legislature of a State, in proceedings between the Federation and that State.

Article 4(4) The proceedings for a declaration that a law is in- valid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall not be commenced without the leave of a Judge of the Supreme Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause.

[2] The applicant, Nordin bin Salleh, sought leave to file proceedings for declarations that s 73 of the Kelantan Council of Religion and Malay Custom Enactment 1966 is invalid on the following grounds set out in his notice of motion dated 9 April 1993:

(a) A declaration that s 73 of the Kelantan Council of Religion and Malay Custom Enactment 1966 is invalid on the grounds that it makes provision with respect to a matter with respect to which the Legislature of the State of Kelantan had no power to make on the following grounds:

(1) it creates an offence which is not an offence against the precepts of Islam;

(2) it is not a matter relating to the precepts of Islam;

(3) it is a matter with respect to which the Parliament has exclusive power to legislate in respect of, as set out in cl 4 of the Ninth Schedule (List 1 - Federal List) and which the State of Kelantan has no power.

(b) Alternatively, a declaration that s 73 is invalid to the extent that it includes "pegawai masjid" on the following grounds:

(1) contempt of the lawful authority of the pegawai masjid does not constitute an offence against the precepts of Islam;

(2) it is not a matter relating to the precepts of Islam;

(3) it is a matter with respect to which the Parliament has exclusive power to legislate in respect of, as set out in cl 4 of the Ninth Schedule (List 1 - Federal List) and which the State of Kelantan has no power;

(c) A declaration that s 73 of the Kelantan Council of Religion and Malay Custom Enactment 1966 is void pursuant to art 4(1) of the Federal Constitution on the grounds that it is inconsistent with art 10(1) (a) of the Federal Constitution.

[3]Section 73 of the said Enactment is as follows:

Whoever, shall be guilty of any contempt of the lawful authority of His Highness the Sultan in his capacity as the Head of the religion of the State, or of the Majlis or any Committee or member or officer thereof, or of any Court, or the presiding officer thereof, or of pegawai masjid, shall be punishable with imprisonment for a term not exceeding three months or with fine not exceeding RM500.

Provided that a person not professing the Islamic religion who commits an offence under this section shall be tried in the Magistrates Court.

[4] The facts which gave rise to the application are set out in the affidavit of Nordin bin Salleh affirmed on 7 April 1993. Briefly the salient facts were that on 23 March 1993 the applicant was served with two separate summons sent by the Chief Kadi of Kelantan charging him pursuant to s 73 of the Kelantan Council of Religion and Malay Custom Enactment with insulting a mosque official because he had lodged two separate police reports against the mosque official. The first grou