Mohd. Azmi SCJ:

We have allowed this application by majority (Tan Sri Datuk Hashim Yeop Sani SCJ and Tan Sri Dato' Seri Eusoffe Abdoolcader SCJ dissenting), and we now proceed to give our reasons why the declarations sought should be granted.

Pursuant to leave obtained under Article 4 Clause (4) of the Federal Constitution, the petitioners filed their suit for declaratory orders to the effect that the new s. 298A of the Penal Code is invalid on the ground that it makes provision with respect to a matter with respect to which Parliament has no power to make law.

Each of the petitioners is being charged for an offence under the impugned section for doing an act which is likely to prejudice unity amongst persons professing the Islamic religion. They are alleged to have acted as unauthorised Bilal, Khatib and Imam at a Friday Prayer held on 13 May 1983 at Kampong Kenaga, Wakaf Tapai in the District of Kuala Terengganu, without being so appointed under the Terengganu Administration of Muslim Law Enactment 1955 - the State Law relating to the administration of all matters concerning the religion of Islam and the religious Courts. The appointment of Bilal, Khatib and Imam is governed by ss. 88 and 89 of the Terengganu Enactment, but apparently there is no specific punishable section in the State Law to deal with persons who contravene these two Sections, except for convening or taking part in the performance of Friday Prayers in unauthorised building (s. 142A), for unauthorised Khutbah (s. 142B) and for contempts of religious authorities (s. 149).

The impugned section was enacted by Parliament vide the Penal Code and Criminal Procedure Code (Amendment) Act 1983 (Act A549), and the crucial issue before the Court is whether the said section is ultra vires Article 74 Clause (1) of the Federal Constitution, since the subject matter of the legislation is reserved for the State Legislatures and therefore beyond the legislative competency of Parliament. Mr. Sri Ram for the petitioners contends that the impugned section is null and void because in pith and substance it is a law on the subject of religion on which Parliament is not competent to legislate except with regard to the religion of Islam in the Federal Territories of Kuala Lumpur and Labuan. Our Parliament is not a legislative body with unlimited legislative power, and the sole right to legislate on Islamic religion under Item (1) of the State List is given to the State Legislatures. On the other hand, Mr. Selventhiranathan, Senior Federal Counsel submits that Parliament has the necessary constitutional competence to enact the law since the subject matter is not in fact "religion", but "Public Order" under Item 3(a), and "civil and criminal law and procedure and the administration of justice, including creation of offences in respect of any of the matters included in the Federal List, or dealt with by federal law" under item 4(h) of the Federal List. In short, since "Public Order" is in the Federal List, Parliament can create offences in respect of it without being inhibited by Item (1) of the State List.

In so far as it is relevant to this proceeding, Item (1) of the State List read with Article 74 Clause (2) provides that a State Legislature may make laws "except with respect to the Federal Territories of Kuala Lumpur and Labuan", on matters of:

- Islamic law ...

- mosques or any Islamic public places of worship ...

- creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; ...

- The control of propagating doctrines and beliefs among persons professing the religion of Islam,

- The determination of matters of Islamic law and doctrine ...

The subject of Islamic religion, both general and specific, conferred by Item (1) is all-embracing, particularly when considered in the light of Article 74 Clause (4) which provides:

Where general as well as specific express