The 35-year-old man is challenging Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, the provision he was charged under for allegedly attempting to commit unnatural sex.
A nine-member panel, chaired by Chief Justice Tengku Maimun Tuan Mat, reserved judgment after hearing submissions by counsel Malik Imtiaz Sarwar, who appeared for the man as the petitioner, and Selangor state legal adviser Salim Soib@Hamid, who represented the Selangor state government as the respondent.
Counsel Halimatunsa’diah Abu Ahmad, who acted for the Selangor Islamic Religious Council as the second respondent, and counsel Rahim Sirwan, who appeared for the Federal Territories Islamic Religious Council as amicus curiae (friend of the court), also submitted during the proceedings.
“We adjourn the decision and will inform the parties the date of the decision,” said Tengku Maimun.
Others on the bench were Court of Appeal president Rohana Yusuf; Chief Judge of Malaya Azahar Mohamed; Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Federal Court judges Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Zabariah Mohd Yusof and Hasnah Mohammed Hashim.
Earlier, Malik submitted that Parliament has legislative power to enact the Penal Code provisions and the legislature of the states would not have the power to enact such an offence under the precepts of Islam if the said offence falls within the definition of criminal law.
“The Selangor state legislature has no power to enact the impugned provision (Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995).
“The subject matter of the impugned provision, that is unnatural sex, is a matter within the federal list in the Constitution and falls within the ambit of criminal law,” he said.
Salim submitted that the state law against unnatural sex was valid as it was against the precepts of the religion of Islam.
Among others, he submitted that the state legislature was empowered to enact such a law per the Ninth Schedule of the Federal Constitution.
On May 25, the Federal Court granted leave to the man to commence proceeding by way of a petition against the Selangor government for declaration that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid.
On Aug 21 last year, the chief sharie prosecutor, through the shariah prosecutor, decided to proffer a charge under Section 28 of the enactment against the applicant in the Selangor Syariah High Court.
The charge was that the man had attempted to commit sexual intercourse against the order of nature with certain other male persons in a house in Selangor on Nov 9, 2018.
The man pleaded not guilty to the charge and his trial in the Syariah Court has stayed pending the outcome of his constitutional challenge on the provision in the enactment that he was charged under.
He filed an application for leave to commence proceedings against the Selangor government under Article 4(4) of the Federal Constitution on Nov 28, 2019.
In his affidavit in support of his application, he said the Federal Constitution’s State List item 1 does allow the legislature of the state of Selangor to make laws on the “creation and punishment of offences by persons professing the religion of Islam against the precepts of that religion, except in regard to matters included in the Federal List”.
He claimed that Section 28 of the enactment is a matter included in the Federal List and dealt with by a federal law, that is the Penal Code.
He alleged that the legislature of the state of Selangor had transgressed into the Federal List by legislating on a matter in that list.