The State legislatures' power to create criminal laws against Islamic precepts is constitutionally limited, preventing overlap with federally legislated matters, specifically those concerning criminal law.

Tengku Maimun Tuan Mat Chief Justice:

JUDGMENT OF THE COURT 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-à-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 Article 4 (3) and (4) of the Federal Constitution (‘ FC ’). He sought to challenge the competency of the Selangor State Legislature (‘SSL’) to enact section 28

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

“

(1)A declaration that Section 28

(2)Costs; and/or

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

Background Facts

[4]On 21.8.2019, the Syarie Prosecutor preferred a charge against the petitioner in Selangor Syariah High Court. The charge essentially alleged that the petitioner had, on 9.11.2018, 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 section 281995section 52 (attempted offences).

[5]The Syariah proceedings have since been stayed pending the determination of this Court on the constitutionality of section 281995 The Main Arguments

[6]Section 281995

“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 section 281995sections 377377APenal Code

“Buggery

377A. Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty 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 section 281995section 28

[10]Learned counsel for the petitioner, Dato’ Malik Imtiaz stressed that this is a very important petition as it raised important que