Authored By: NUR AMIRA FARHANA BINTI ISMAIL
ISLAMIC SCIENCE UNIVERSITY OF MALAYSIA
Introduction
Facts
On 21 August 2019, the Chief Syarie Prosecutor, through the Syariah Prosecutor, filed a charge against Iki Putra bin Mubarrak (the applicant) in the Syariah High Court of Selangor under case number 10100–153–0020–2019. The charge alleged that on 9 November 2018, between 9:00 p.m. and 10:30 p.m., the Applicant had attempted to commit sexual intercourse against the order of nature with several other male persons at a house in Bandar Baru Bangi. The offence was charged under Section28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalises unnatural sex acts or known as sodomy. The Applicant was charged with attempting to commit an act punishable under that provision, referred to as the “impugned provision.” He pleaded not guilty to the charge. However, the trial in the Syariah Court was stayed pending the outcome of the applicant’s constitutional challenge against the validity of Section28 of the Enactment, on the grounds that it may be ultra vires the Federal Constitution.
Legal Issues & Arguments
The legal issues in this matter revolve around the constitutional validity of Section28 enacted by the State Legislative Assembly (SSL).Firstly, Whether SSL in enacting s 28 had legislated on a matter which belonged to the Federal List in Ninth Schedule of the Federal Constitution. Secondly, whether person charged under s 28 and who sought to challenge constitutionality of s 28 ought to be granted leave to do so under Article 4(4) of Federal Constitution. Lastly, whether applicant had fulfilled requirements for leave to be granted.
Court Decision and Reasonings
Preliminary Objection dismissed and application for leave granted.
Abang Iskandar FCJ
Through the judgment delivered by Abang Iskandar FCJ, considered the constitutional validity of Section28 of the Syariah Criminal Offences (Selangor) Enactment 1995. The Applicant, Iki Putra, had been charged under this provision for allegedly attempting to commit sexual intercourse against the order of nature with other men. He sought a declaration that Section28 was invalid on the grounds that the Selangor State Legislature (LSS) lacked legislative competency under the Federal Constitution.
Abang Iskandar FCJ explained that the core issue was whether Section28, which criminalised certain homosexual acts under Syariah law, was within the legislative power of the State Legislature, given that criminal law falls within the Federal List under the Ninth Schedule of the Federal Constitution (specifically, List I, Item 4 and 4(h)). The applicant argued that the subject matter of Section28 was already covered under federal law, particularly sections 377 to 377E of the Penal Code, which criminalise similar conduct. As such, the provision fell outside the legislative authority of the state by virtue of the preclusion clause in Item 1 of the State List (List II), which prohibits state laws from dealing with matters within the Federal List.
The respondent raised a preliminary objection, asserting that the applicant had not named the correct parties, such as JAIS or MAIS. However, Abang Iskandar FCJ dismissed this argument, stating that under Article 4(4) of the Federal Constitution, the Selangor State Government was a proper respondent in a challenge concerning the competency of the state legislature. The issue at hand was the validity of the law itself, not its enforcement.
In delivering the judgment, Abang Iskandar FCJ affirmed that while State Legislatures have the power to enact laws relating to Islam and offences against the precepts of Islam under the State List, this power is subject to constitutional limitations. Specifically, states cannot enact laws that pertain to matters already within the Federal List. The Federal Court held that the “pith and substance” of Section28 pertained to criminal law, an area already legislated by Parliament through the Penal Code. Therefore, Section28 was, in substance, criminal law and not merely a religious offence.
The Court concluded that permitting State Legislatures to enact parallel provisions in criminal law would contravene the division of legislative powers established by the Constitution. Accordingly, the Federal Court granted the applicant leave to proceed with his constitutional challenge under Article 4(4), indicating that there was merit to his claim that Section28 was enacted ultra vires the powers of the Selangor State Legislature.
Critical Analysis and Conclusion
The case revolved around the constitutionality of Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalised sexual intercourse against the order of nature. The applicant contended that this provision was ultra vires the Federal Constitution because it dealt with a subject already covered under federal law, specifically the Penal Code provisions in Sections 377 to 377E. These provisions criminalise similar acts and fall under Item 4(h) of the Federal List (List I), which grants exclusive legislative competence to Parliament in matters relating to criminal law.
The Federal Court granted the applicant leave to proceed with the constitutional challenge and dismissed the preliminary objection (PO) raised by the respondent. The PO argued that the Selangor State Government was not the correct party to be named in the application. However, the Court clarified that under Article 4(4) of the Federal Constitution, challenges concerning legislative competency must be directed at the government responsible for the impugned law. Thus, naming the State Government was procedurally correct.
Central to the Court’s reasoning was the “pith and substance” doctrine. It held that the true character of Section28 was essentially criminal in nature and substantially overlapped with federal criminal law, regardless of whether the wording was identical. The Court emphasised that the key issue was not textual similarity but whether the Selangor State Legislative Assembly had the constitutional authority to legislate on that subject. The Federal Constitution clearly restricts State Legislatures from enacting laws on matters already within the Federal List. While Item 1 of the State List allows states to legislate on offences against the precepts of Islam, this is subject to the “preclusion clause,” which prohibits states from legislating on matters included in the Federal List. Since sexual offences against the order of nature are governed by federal law, the state lacked legislative competence to enact Section28.
The Court also addressed the argument that Muslims are subject to both civil and Syariah legal systems. While acknowledging the dual legal framework, the Court stressed that all laws, including Syariah laws, must conform to constitutional boundaries. The existence of a parallel religious legal system does not permit encroachment into federal legislative domains. Importantly, the Court rejected the claim that Section 28 was valid merely because it was not identical to federal provisions. This line of reasoning was found unpersuasive, as it failed to address the core issue of legislative authority.
In conclusion, the Federal Court’s decision underscores the supremacy of the Federal Constitution and reaffirms the principle of constitutional federalism. It draws a clear line between religious moral governance and the federal criminal justice system. The case sets an important precedent in delineating the scope of State legislative power, particularly in relation to Syariah criminal offences. It also affirms the function of Article 4(4) as a safeguard against unconstitutional legislation, even when enacted under religious auspices.
Reference(S):
Statutes
- Federal Constitution, Malaysia.
- Syariah Criminal Offences (Selangor) Enactment 1995.