State Legislatures in Malaysia cannot enact laws for matters governed by Federal law, specifically on criminal offenses, thus validating the challenge against state provisions on unlawful sexual conduct.

Tengku Maimun Tuan Mat CJ:

Introduction

[1] The issue for our determination is rather narrow. It concerns the interpretation or effect of the words 'except in regard to matters included in the Federal List' contained in Item 1, List II, Ninth Schedule of the Federal Constitution ('State List'), vis-a-vis the power of the State legislatures to make laws under the said Item.

[2] The petitioner was granted leave to file this petition pursuant to art 4(3) and (4) of the Federal Constitution (' FC '). He sought to challenge the competency of the Selangor State Legislature ('SSL') to enact s 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 ('1995 Enactment').

[3] The prayers for relief in the Amended Petition in encl 101 read as follows:

"(1) A declaration that s 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid on the ground that it makes provision with respect to a matter to which the Legislature of the State of Selangor has no power to make laws and is therefore null and void;

(2) Costs; and/or

(3) Such further and/or other reliefs as deemed fit by this Honourable Court.".

Background Facts

[4] On 21 August 2019, the Syarie Prosecutor preferred a charge against the petitioner in Selangor Syariah High Court. The charge essentially alleged that the petitioner had, on 9 November 2018, sometime between 9pm and 10.30pm in a house at Bandar Baru Bangi, attempted to commit sexual intercourse against the order of nature with certain other male persons. The governing provision of the charge is s 28 of the 1995 Enactment read together with s 52 (attempted offences).

[5] The Syariah proceedings have since been stayed pending the determination of this Court on the constitutionality of s 28 of the 1995 Enactment.

The Main Arguments

[6]Section 28 of the 1995 Enactment reads as follows:

"Sexual intercourse against the order of nature

28. Any person who performs sexual intercourse against the order of nature with any man, woman or animal is guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.".

[7] The relevant portion of Item 1 of the State List in turn provides:

"Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to... 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... Syariah courts... shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law...".

[Emphasis added]

[8] The federal 'versions' of s 28 of the 1995 Enactment in this context are respectively ss 377 and 377A of the Penal Code which provide:

"Buggery

377. Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to whipping.

Carnal intercourse against the order of nature

377A. Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.".

[9] The petitioner's argument is that the above two sections of the Penal Code, comprised in federal law already govern the very subject matter of s 28 of the 1995 Enactment and accordingly, the SSL is incompetent to pass s 28 by virtue of the words 'except in regard to matters included in the Federal List' in Item 1 of the State List.

[10] Learned counsel for the petitioner, Dato' Malik Imtiaz stressed that this is a very important petition as i