Federal Court grants leave to man facing charge in Selangor Syariah High Court to commence constitutional challenge

Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim (then Federal Court Judge) granted the leave application to the man, whose name is being withheld, to commence proceedings by way of a petition against the Selangor Government for declaration that Section 28 of the Syariah Criminal offences (Selangor) Enactment 1985 is invalid.

The man claimed that Legislature of the State of Selangor has no power to make such laws.

In his judgment dated May 14, Justice Abang Hashim said the man's application has fulfilled the two requirements, namely that leave was required and necessary as the applicant (the man) had shown that his complaint involved the question of competency of the Legislature of the State of Selangor to legislate on a matter that is on the Federal List.

He also said that the application has not been one that could, in all fairness, be termed as frivolous or an abuse of court process, adding that the applicant has shown that he has an arguable case.

On Aug 21 last year, the Chief Syarie Prosecutor through the Syariah 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 applicant 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 been stayed pending the outcome of his constitutional challenge on the provision in the Enactment with which he is being charged under.

The applicant 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's 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".

The applicant claimed that Section 28 in the Enactment is a matter included in the Federal List and is 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 on that list.

Meanwhile, the Selangor government, represented by Selangor State legal adviser Datuk Masri Mohd Daud, contended that Muslims in Malaysia are subjected to two sets of laws namely the civil law system and the Muslim law system.

The state government argued that the provision in the Enactment was not identical with the federal law, as contained in the Penal Code.

The state government submitted that the Legislature of the State of Selangor legislated Section 28 on the basis that it had jurisdiction in legislating Islamic law and that the section (Section 28) was aimed at addressing unnatural sexual acts, as being acts which were against the precepts of Islam.

The man's lawyer, A. Surendra Ananth, when contacted, said following the granting of leave by the Federal Court, his client is now required to file the petition for the matter to be heard in full.