Former deputy public prosecutor Najib Zakaria said the complainant in the case could lodge a report for police to begin an investigation.
“There is no time limit to make a report and probe the case. Police can continue with the matter started by the Selangor shariah investigators and prosecutors,” he said.
Najib said police could investigate anyone as the Penal Code did not discriminate between Muslims and non-Muslims.
Sections 377B and 377C of the Penal Code carry a jail term of up to 20 years and whipping for sodomy. Males aged below 50 can be caned up to 24 times.
Najib believes the Selangor state legal adviser will be in a better position to advise parties on the next course of action as he will have the necessary information on the case.
He said this in response to the declaration by a nine-member Federal Court bench last week that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is unconstitutional as the Selangor state legislature is incompetent to pass the law since it is already on the Federal List.
Chief Justice Tengku Maimun Tuan Mat, who chaired the panel, had said the primary power to enact criminal laws lay with Parliament.
On Aug 21, 2019, the Selangor chief sharie prosecutor filed a charge under Section 28 against the man in the Selangor Shariah High Court.
The man, whose identity is being withheld at the request of his lawyers, is said to have attempted to commit sexual intercourse against the order of nature with other male persons at a house in Selangor on Nov 9, 2018.
The man claimed trial and the proceedings were stayed pending the outcome of his constitutional challenge in the Federal Court.
Chief Judge of Malaya Azahar Mohamed, who was also on the bench, said from the facts of the case, the man attempted to commit sexual intercourse against the order of nature with certain other male persons, which included three non-Muslims.
Another former deputy public prosecutor, Shamsul Sulaiman, said the apex court had only ruled that the provision in the Selangor enactment was unlawful but did not nullify the investigation.
“Police can record statements from witnesses as required under the Criminal Procedure Code as part of their evidence collection process,” he said, adding that the possibility of prosecution was there if there was sufficient evidence.
He said police could obtain other evidence under the custody of the state religious authorities to build a strong case.
“Finally, it is for the attorney-general and his officers to decide on prosecution based on evidence collected by police,” he said.
Lawyer Akberdin Abdul Kader, who also practises shariah law, said if there was sufficient evidence for a prima facie case, the man could be charged with attempting to commit sodomy.