[2020] 4 MLRA 1

Federal Court, Putrajaya
Abang Iskandar Abang Hashim FCJ
[Original Jurisdiction No: BKA-3-11-2019 (W)]
14 May 2020


Abang Iskandar Abang Hashim FCJ:

Background Facts Of Case

[1] On 21 August 2019, the Chief Syarie Prosecutor through the Syariah Prosecutor decided to proffer a charge against Iki Putra bin Mubarrak ("the applicant") in Selangor Syariah High Court No: 10100153-0020-2019.

[2] In essence, it was alleged that the applicant had on 9 November 2018, between 9pm and 10.30pm in a house in Bandar Baru Bangi, attempted to commit sexual intercourse against the order of nature with certain other male persons.

[3] The charge was that the applicant had attempted to commit an offence punishable under the Syariah Criminal Offences (Selangor) Enactment 1995 (the "Enactment"). The relevant offence that the applicant was alleged to have attempted to commit was contained under s 28 of the Enactment (the "Impugned Provision"). The applicant pleaded not guilty to the charge. His trial in the Syariah Court has been stayed pending the outcome of this application on the challenge he is making with respect to the constitutionality of the Impugned Provision in the Enactment with which he is being charged under.

The Leave Application

[4] The applicant, through the Notice of Motion dated 28 November 2019, made an Application from this court for, among others, leave to commence proceedings against Kerajaan Negeri Selangor ("the respondent") be given pursuant to art 4(4) of the Federal Constitution ("the FC"). It is in the exercise of the Federal Court's original jurisdiction under arts 4(3) and 128(1)(a) of the FC by way of a petition for a declaration that the Impugned Provision is invalid on the ground that the Legislature of the State of Selangor ("LSS") makes provision with respect to a matter to which it has no power to make law and is therefore null and void.

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