Summary of the Federal Court decision on leave hearing 

Baca dalam Bahasa Malaysia.

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Parties involved

Applicants = X represented by Surendra Ananth 

Respondents = State of Selangor, represented by State legal advisor: Dato’ Masri bin Mohd Daud (together with Miss Siti Fatimah binti Talib)

Judge: Abang Iskandar bin Abang Hashim 

What do we (applicants) want? 

Via a petition for a declaration that impugned provision is invalid on the ground that the state legislature has no power to enact the law

The judge in granting leave on 14 May 2020 noted that the application fulfilled the two requirements 

1. Leave is required and necessary as the applicant’s complaint questions the competency of the state in legislating a matter on the Federal list 
2. The applicant has shown arguable case. The application in all fairness cannot be termed frivolous or abuse of court process

Citing Mamat bin Daud’s case, in which leave was granted to allow, “the applicant(s) to canvass their case before the full court on the constitutionality and validity” of Section 28. Leave granted. 

Summary 

Preliminary objections raised by the Head of Syarie Prosecutor of the state of Selangor (respondent) 

1. Applicant had wrongly named Kerajaan Negeri Selangor as respondent in this action because the state of Selangor has no jurisdiction to execute, enforce or prosecute under the Enactment. Thus, the application is defective and should be struck out in limine (on the threshold). The respondent stated that we should have named Majlis Agama Islam Selangor and/or Jabatan Agama Islam Selangor as parties, as these bodies have better understanding on the matter at hand as they deal with the prosecution and are the implementing agencies of Section 28.
2. The application is frivolous. Article 3, 11(4) and 74 of the Federal Constitution allows the State legislature to enact laws with respect to matters listed in the State List (2nd List in the 9th Schedule) or the Concurrent List (3rd List in the 9th Schedule)

Response to objection 1

The challenge focuses on the state’s competency to legislate, as stated in Article 4(4) of the Federal Constitution. Thus, the state must be named as a party.This is only the leave stage. At this stage the court is only concerned about whether leave should be granted on whether section 28 (the impugned provision) was properly enacted by the Selangor state government.

Other parties may apply to be interveners, if they feel they have legitimate interest, when we go into the substantive hearing.

Preliminary objection rejected due to lack of merit

Response to objection 2

The judge noted that the approach to filing this application is correct. 

Item 4(h) in the Federal List says 

“4. Civil and criminal law and procedure and the administration of justice, including – 

(h) creation of offences in respect of any of the matters included in the Federal List or dealt with by Federal law;”

The preclusion clause in Item 1, State List is critical. 

… 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 judge addressed the issues around the definition of ‘criminal law’ in the Federal List  

1. In the Sulaiman Takrib case, the court decided that the definition of ‘criminal law’ under the Federal List could be too wide and everything can be criminal law 
2. Canada also faced similar issues, as they too have Federal and provincial legislatures. The Canadian Supreme Court recognizes the problem with the traditional definition of criminal law, which was too wide and allow Federal Parliament to enact laws under the guise of criminal law 
3. For a law to be a valid criminal law, it must have 
   1. Provides for an offence 
   2. Penalty 
   3. Purpose, which is to address concern relating to peace, security, morality, health or some similar purpose 

Sexual intercourse against the order of nature, for the sake of this discussion, may have a purpose of criminal law – morality. Section 377 and 377A, a colonial law was introduced on the ground of morality perceived at that material time. (please refer to our human rights factsheet). This purpose provides grounds for the Federal government to enact Section 377 and 377A as listed under item 4 of the Federal List. 

The respondent had raised Section 28 and Section 377 are not identical. The judge agreed with the applicant’s lawyer that in determining whether Section 28 was rightly enacted, it is important to look at the pith and substance of the matter. This will have to be ventilated or unpacked or interrogated by the fuller apex court. 

The respondent had also argued that the Section 28 was aimed at addressing unnatural sexual acts, which as deemed as against the precepts of Islam. 

The central question in this complaint is the competency of the state to enact Section 28, the impugned section as listed in the Federal and state lists. The complaint does not question the precept of Islam or Muslim people being subjected to two sets of laws. The complaint, however, questions the validity of Section 28, given the preclusion clause in Item 1 of the State list, which limits the state’s power to enact laws that are already dealt with under the Federal list.  

In the Mamat bin Daud case, the court had decided that if a similar offence has been created and is found in the federal law since even prior to the Merdeka Day that must be accepted as ‘criminal law’. 

Other interesting points 

The respondent had also stated that ‘there was nothing wrong as long as the accused person was not prosecuted twice for the same offence.’ 

[FAQ] Federal Court allows challenge to Selangor’s Syariah law against ‘unnatural sex’