IKI PUTRA MUBARRAK v. KERAJAAN NEGERI SELANGOR & ANOR
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
ABANG ISKANDAR CJ (SABAH & SARAWAK)
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
VERNON ONG LAM KIAT FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
[CASE NO: BKA-3-11-2019(W)]
25 FEBRUARY 2021
[2021] CLJ JT (5)

Abstract

Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalises unnatural sex, is in contravention of the State List in the Ninth Schedule of the Federal Constitution. The section, despite providing for the offences against the 'precepts of Islam', is limited by the preclusion clause contained in the State List, i.e., 'except in regard to matters included in the Federal List'. Criminal law being a federal matter, is exclusively for Parliament to enact; and is beyond the legislative competency of the State Legislature.

CONSTITUTIONAL LAW: Legislation – Validity of legislation – Section 28 of Syariah Criminal Offences (Selangor) Enactment 1995 – Offence against ‘precepts of Islam’ – Challenge against competency of Selangor State Legislature to legislate offences against precepts of Islam – Whether qualified by phrase ‘except in regard to matters included in the Federal List’ in item 1, List II, Ninth Schedule of Federal Constitution – Whether States restricted from making laws on subjects within domain of Parliament – Whether criminal law within domain of Parliament – Whether s. 28 enacted in contravention of item 1 of State List – Whether s. 28 inconsistent with Federal Constitution – Whether void

ISLAMIC LAW: Legislation – Validity of impugned legislation – Section 28 of Syariah Criminal Offences (Selangor) Enactment 1995 – Offence against ‘precepts of Islam’ – Challenge against competency of Selangor State Legislature to legislate offences against precepts of Islam – Whether qualified by phrase ‘except in regard to matters included in the Federal List’ in item 1, List II, Ninth Schedule of Federal Constitution – Whether States restricted from making laws on subjects within domain of Parliament – Whether criminal law within domain of Parliament – Whether s. 28 enacted in contravention of item 1 of State List – Whether s. 28 inconsistent with Federal Constitution – Whether void