KUALA LUMPUR – The Federal Court’s landmark decision on Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995 has made it clear that states cannot legislate offences that also fall under the federal list in the constitution.
In the judgment released today, the apex court said Selangor has wide powers to legislate offences that go against the precepts of Islam, but is limited in its powers when it comes to “matters included in the federal list”.
“Learned counsel for the respondents submitted that Section 28 of the 1995 enactment is worded more broadly than the federal versions. In our view, that is wholly immaterial.
“What matters is whether, in pith and substance, Section 28 of the 1995 Enactment relates to a matter that falls under the federal list. In our judgment, it does.
“Based on the foregoing discussion, it can be postulated that having regard to the preclusion clause in item 1 of the state list, when the two legislatures (federal and state) legislate a law concerning the subject matter of criminal law, and the two laws touch on the same matter, the said laws cannot co-exist even if the said law is said to be against the precepts of Islam,” the apex court said in its judgment summary.
How the case came about
In August 2019, a man was charged in the Selangor shariah high court for attempting to commit sexual intercourse against the order of nature with another man or men at a house in Bandar Baru Bangi.
He was charged under Section 28 of the Selangor Shariah Enactment of 1995.
Through his lawyer, Datuk Malik Imtiaz Sarwar, he referred to several laws.
First was that there are already two sets of laws governing “unnatural sex”, one from Parliament and another from the state legislature.
Section 28 of the Shariah State Enactment states that: “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 RM5,000 or to imprisonment for a term not exceeding three years, or to whipping not exceeding six strokes, or to any combination thereof.”
Section 377 of the Penal Code says: “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.”
Section 377A of the Penal Code then says: “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.”
To try and provide clarity, Malik and his team referred to the first item of the state list in the federal constitution:
“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…shariah 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…”
The important point to note from the text above is that the state has powers to legislate on Islamic offences, with the exception to matters provided in the federal list.
Malik argued that federal law (the Penal Code) already governs “unnatural sex”, and the Selangor legislature is incompetent to enact Section 28 of the shariah enactment because of the phrase “except in regard to matters included in the federal list” in the federal constitution.
What was the argument on the other side?
Selangor legal adviser Datuk Salim Soib and Halimatunsa’adiah Abu Ahmad argued that the Selangor legislature can enact Section 28, because it is an offence that goes against the precepts of Islam.
They did not, however, deal with the phrase “except in regard to matters included in the federal list” that was in contention.
The two went on to say that Section 28 is worded differently from the same offence in the Penal Code, and federal and state laws can coexist. – The Vibes, February 25, 2021
