IKI PUTRA MUBARRAK v. KERAJAAN NEGERI SELANGOR & ANOR

[2021] 3 MLRA 384

IKI PUTRA MUBARRAK v. KERAJAAN NEGERI SELANGOR & ANOR
Federal Court, Putrajaya
Tengku Maimun Tuan Mat CJ, Rohana Yusuf PCA, Azahar Mohamed CJM, Abang Iskandar Abang Hashim CJSS, Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Zabariah Mohd Yusof, Hasnah Mohammed Hashim FCJJ
[Case No: BKA-3-11-2019(W)]
25 February 2021

JUDGMENT

Tengku Maimun Tuan Mat CJ:

Introduction

[1] The issue for our determination is rather narrow. It concerns the interpretation or effect of the words 'except in regard to matters included in the Federal List' contained in Item 1, List II, Ninth Schedule of the Federal Constitution ('State List'), vis-a-vis the power of the State legislatures to make laws under the said Item.

[2] The petitioner was granted leave to file this petition pursuant to art 4(3) and (4) of the Federal Constitution ('FC'). He sought to challenge the competency of the Selangor State Legislature ('SSL') to enact s 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 ('1995 Enactment').

[3] The prayers for relief in the Amended Petition in encl 101 read as follows:

"(1) A declaration that s 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid on the ground that it makes provision with respect to a matter to which the Legislature of the State of Selangor has no power to make laws and is therefore null and void;

(2) Costs; and/or

(3) Such further and/or other reliefs as deemed fit by this Honourable Court.".

Background Facts

[4] On 21 August 2019, the Syarie Prosecutor preferred a charge against the petitioner in Selangor Syariah High Court. The charge essentially alleged that the petitioner had, on 9 November 2018, sometime between 9pm and 10.30pm in a house at Bandar Baru Bangi, attempted to commit sexual intercourse against the order of nature with certain other male persons. The governing provision of the charge is s 28 of the 1995 Enactment read together with s 52 (attempted offences).

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