IKI PUTRA BIN MUBARRAK v KERAJAAN NEGERI SELANGOR & ANOR [2021] 2 MLJ 323

Federal Court (Putrajaya)

Declaration on State legislatures in making laws under Item 1, List II of Ninth Schedule

1.    On 21 August of 2019, the Selangor Syarie Prosecution had charged the Petitioner at the Selangor Syariah High Court.

2.    The main allegation in the charge was that the Petitioner attempted to engage in sexual activity that was against nature’s order with a number of other males who are not Muslims on 9 November of 2018, around 9pm to10.30 pm in a residence near Bangi, Selangor.

3.    The Petitioner in this case is one Iki Putra Bin Mubarrak who had been particularly charged in accordance with Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 (“1995 Enactment”).

4.    Leave from the Federal Court was granted to the Petitioner to proceed with this petition in compliance with Article 4(3), (4) and 128(1)(a) of the Federal Constitution (“FC”) with regard to the competency of the Selangor State Legislature to enact Section 28 of the 1995 Enactment.

5.    For the avoidance of doubt, the following authorities shall be emphasized.

6.    According to Section 28 of the 1995 Enactment, engaging in sexual activity against the laws of nature is a crime punishable with whipping up to six (6) strokes or imprisonment for a term not exceeding three (3) years or a fine of RM5,000.00, or any combination of those penalties.

7.    The pertinent part of Item I of the State List in the FC (“State List”) furnishes that Islamic Law shall be allowed to create punishment of offences by Muslims, except in regard to matters within the Federal List.

8.    Section 377A of the Criminal Code, which provides that any person engaging in sexual contact by inserting the penis into either the anus or the mouth, is said to be engaging in carnal intercourse against the laws of nature, is the Federal “equivalent” of Section 28 of the 1995 Enactment in this context.

9.    The Petitioner contended that the wording “except in regard to matters included in the Federal List” in Item I of the State List render the Selangor State Legislature (hereafter referred to as “SSL”) incapable to pass Section 28 of the 1995 Enactment (“Section 28”).

10.  However, the Petitioner argued that the law passed by the Respondents raised an extremely important questions of how the Federal and State legislative to exist side-by-side.  Description of the phrase of ‘except in regard to matters included in the Federal List’ in Item 1 of the State List as the ‘preclusion clause’ is being pinpointed by the learned counsel of the Petitioner.

11.  Nonetheless, the State Legal Advisor of Selangor is of the opinion that the SSL is indeed competent to enact such laws as it is encompassed with the ‘offence against the precepts of Islam’.

12.  Nevertheless, the Respondent did not comprehensively deal with the concern over  the preclusion clause in arguing that Section 28 is adversely framed from its federal parallel parts but rather submitting that Section 28 as constitutionally valid, rendering that the Federal and State provisions can exist side by side.

1.    Whether the scope of argument is presented within the original jurisdiction of the Federal Court?

2.    Whether the experts are having the jurisdiction to decide issues on the construction of the Federal Constitution?

1. The scope of arguments confined within the original jurisdiction of the Court.

(a) The Court found it is necessary to address the scope of arguments presented by the parties considering the limited scope of the Court’s initial jurisdiction as set forth in Articles 128, 4(3), and 4(4) of the Federal Constitution.

(b) Quoting Azmi FJ in Rethana v Government of Malaysia [1988] 1 MLJ 133 that had expounded for the Court’s jurisdiction.

“Under our Constitution, the Federal Court is an appellate Court and its exclusive original jurisdiction is limited. In my opinion, this particular original jurisdiction of the Federal Court conferred by Article 128(1)(a) read with section 45 of the Courts of Judicature Act 1964 should be strictly construed and confined to cases where the validity of any law passed by Parliament or any State Legislature is being challenged on the ground that Parliament has legislated on a matter outside the Federal List or Concurrent List; or a State Legislature has enacted a law concerning a matter outside the State List or the Concurrent List as contained in the ninth Schedule to the Federal Constitution.

[Emphasis is added]

(c)  This petition was submitted in the Federal Court’s original jurisdiction, as was stated at the beginning.

(d) The arguments made by the learned counsel of the Petitioner regarding the constitutional validity of the Syariah Courts (Criminal Jurisdiction) Act 1965 are as follows:

(i)   Syariah Courts do not have judicial authority;

(ii)  Syariah Courts are not constitutionally authorised to impose whipping and imprisonment sentences; and

(iii) Syariah Courts must equally adhere to Part II of the FC (more specifically, Articles 5(1) and 8(1)) are in  part of the nature that they relate to issues that are of a religious nature,

(iv) Therefore, the Court found that the Petition’s action on raising the issue on the constitutionality of Selangor State Legislature (“SSL) in enacting Section 28 of the 1995 Enactment for the same to be valid is indeed included in the Court’s original jurisdiction.

2.    The Reconciliation of Section 28 of that Enactment with the preclusion clause in Item I of the State List.

(a) Item 4 (h) of the Federal List provides that criminal matters shall be incorporated in the Federal List and addressed pursuant to the federal law.

(b) The above authority had explained that it had made no reference to offences in which hostile to the precepts of Islam.

(c) It was further put forward by the Respondent that Section 28 of the 1995 Enactment is indeed one of the offences concerning matters which is an averse to the precepts of Islam, therefore, the SSL is competent to create such laws.

(d) It is also contended by the Respondents that Section 28 of the Enactment and its federal counterparts are phrased with different connotations, therefore, are qualified to put the federal law standing side by side.

(e) However, the Court found that the contention of the Respondent is only a bisection of the matter in which required to be fully explained to fully support the SSL, further entitling them to create such laws.

(f) The Court further elaborated on the expanse of the phrase ‘precepts of Islam’ with its restraints under the FC.

(g) The Court took in the opinion that the Court is not an expert in legal Islamic realm, therefore, three (3) experts had given their opinion where, Zaki Azmi PCA (as he then was) in Sulaiman Takrib agreed with the elucidation of the same being the ‘precepts of Islam’.

(h) The Court agreed with the previous decisions on the elucidation on the ‘precepts of Islam’ to be in the widest possible construction, which is required for the phrase to be attached to the same entry.

(i) The Court further held that when both the Parliament and the State enacted a similar matter, particularly when the legislation concern the matter comprised of criminal law, the said laws made by the Parliament and the State cannot exist side by side, even when the State particularly satisfied that the offence is something which is hostile to the precepts of Islam.

3. Issue on expert evidence

(a) It is trite law that experts only help the Court to determine issues of fact and that they are lacking any authority to express comments on legal matters. On page 162 of Ong Chan Tow v. R [1963] 29 MLJ 160, Winslow J stated the following:

“Further, questions relating to the existence of debris or broken glass on the road which help to pin-point the site of a collision are clearly matters for the Court and not the expert. Such an expert should not be asked to give his conclusions on matters which are eminently matters for the Court to decide, otherwise he would tend to arrogate to himself the functions of the Court.”

(b) Accordingly, the above-mentioned principle shall be strongly applied for the interpretation of the FC as it shall not be the expert’s position to offer their view on how the FC should be interpreted and applied.

(c)   In fact, it is the Federal Court’s alone that is competent and has the authority to interpret the FC, as this Court has held in Abdul Kahar bin Ahmad v. Kerajaan Negeri Selangor (Kerajaan Malaysia, intervener) & Anor [2008] 3 MLJ 617.

(d)   In furtherance of this, the Court held that Enclosure 129 and Enclosure 130 which are the expert opinions to be of no reference for this case.  Accordingly, the Court upholds the Appellant’s initial objection to the exclusion of the expert opinions in the form of Enclosure 129 and Enclosure 130.

1.     The Parliament of Malaysia having the exclusive power to make laws over matters falling under the Federal List, included in the Ninth Schedule of the Federal Constitution, whereas each state through its Legislative Assembly shall have legislative power over matters under the State List.

2.     It is worth highlighting that the jurisdiction to enact laws for any criminal matters shall be within the jurisdiction of the Parliament, which is the Federal Government, meanwhile the jurisdiction in enacting laws for any religious matters shall be within the jurisdiction of the State Legislative Assembly which is the State Government.