Iki Putra bin Mubarrak v Kerajaan Negeri Selangor (BKA-3-11/2019(w))

3. Item 4(h), Federal List provides: "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;" 6.4. The subject matter of the Impugned Section, that is "Sexual intercourse against the order of nature" is a matter "dealt with by federal law". a. ... b. ... c. ...

5. As is apparent, the Penal Code already deals with the subject matter of the Impugned Section. This in itself ousts the legislative competency of the SSL to make laws on the matter...

6. In any event, the subject matter of the Impugned Section falls within Parliament's exclusive power over "criminal law". a. The term "criminal law" traditionally referred to acts and omissions that are prohibited by penal provisions. However, as recognized by this court in Sulaiman Takrib, the said definition is too wide and would render all offences as "criminal law"... b. This was also a problem in Canada, which similarly being a federation with a division of legislative power between its Federal Parliament and the provincial legislatures. As in Malaysia, if there is a conflict between a federal law and a provincial law, the former prevails and the latter is displaced. Furthermore, criminal law is a matter within the domain of the Federal Parliament. The Canadian cases are therefore instructive in looking at the legislative field of "criminal law"... c. The Canadian Supreme Court recognized the problem with the traditional definition of "criminal law" which was too wide and would allow the Federal Parliament to colourably legislate on matters in the Provincial List under the guise of "criminal law"... d. In summary, for a law to be a valid criminal law, it must have a valid public purpose. This was expanded further by the Canadian Supreme Court in Reference re Assisted Human Reproduction Act [2010] 3 SCR 457, ... e. In essence, a valid "criminal law" must be a law which: first. Provides for an offence; second, is backed by a penalty; and third, has a criminal law purpose, that is to address a public concern relating to peace, order, security, morality, health or some similar purpose. f. There is no reason why this definition should not be adopted in Malaysia. The existence of the Islamic criminal law system in its current form does not detract from this conclusion. The FC enables the creation of such a system purely for personal law purposes. This was judicially recognized by this Honourable Court in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, ...

7. In striking a balance with the legislative field on precepts of Islam in Item 1, State List, the preclusion clause (as to matters in the Federal List) is critical. a. There is no need to deal with the question of what precepts of Islam means. No matter how widely the term is defined, the legislative power to create offences against precepts is circumscribed by the preclusion clause that is matters in the Federal List which includes "criminal law". b. When the offence sought to be created by the State Legislatures pursuant to Item 1, State List pertains to what could reasonably be viewed as a matter of public concern relating to peace, order, security, morality, health, or some similar purpose, in the public sphere, State Legislatures cease having the power to do so. It is in this way that power to create personal law offences under Item 1, State List is balanced against the power to create (or not create) offences in the public sphere under Item 4, Federal List.

8. The subject matter of the Impugned Section, that is sexual intercourse against the order of nature, arguably has a valid criminal law purpose. a. Sections 377 and 377A, Penal Code were present in the code prior to independence. The Penal Code was substantially based on the Indian Penal Code 1860. b. Sexual intercourse against the order of nature was dealt with under the former section 377 of the Indian Penal Code which provided: "377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine" c. The said section was based on English law at that material time. The purpose of the law was on the ground of morality as perceived at that material time... d. As noted above, this is a valid criminal law purpose.

9. As Parliament is empowered under item 4, Federal List to enact sections 377 and 377A, Penal Code, the SSL is necessarily precluded from doing so under Item 1, State List. a. In Mamat Bin Daud .v Government of Malaysia [1988] 1 MLJ 119, this court did not consider the preclusion the clause in Item 1, State List. b. The majority found that the subject matter of the law in question, that is section 298A, Penal Code, was a matter that fell within a number of legislative fields that belong to the states, including Article 11 (4), FC... c. The majority found that the subject matter of section 298A, Penal Code, that is on religious doctrine, fell within the exclusive purview of the State Legislatures under various legislative fields which do not have a similar preclusion clause as in the precepts of Islam field. d. In the present case, the Impugned Section only falls within the precepts of Islam legislative field. It is therefore caught by the preclusion clause." [15] Premised on the above, it was the contention of the Applicant that there is merit in this leave application in that it was far from being a frivolous application or otherwise an abuse of the court process. It was one that merited further and fuller and mature ventilation in a substantive hearing, before a fuller Federal Court panel. [16] On the other hand, the learned SFC had submitted before me that there was nothing amiss with the LSS legislating of the Impugned Provision in the Enactment. The thrust of his submission had been that the Impugned Provision is not identical with the provisions as contained under section 377A of the Penal Code. He had pointed out that the two provisions under scrutiny were different even in the extent of their punishment provisions. He further contended, as could be seen in paragraph 24.8 of his written submissions where it was emphasized that there was nothing wrong as long as the accused person was not prosecuted twice for the same offence. I would translate this to mean that nothing would be amiss for a Muslim person alleged to have committed a sexual act against the order of nature to be prosecuted only under the Impugned Provision, as long as he is also not prosecuted under section 377A of the Penal Code. I reproduce para 24.8 of his written submissions, below like so: "24.8 Seksyen 59 Akta 388 jelas menyatakan di mana satu perlakuan atau peninggalan adalah satu kesalahan di bawah dua atau lebih undang-undang bertulis, pesalah boleh didakwa dan dihukumi di bawah undang-undang yang mana satu, selagi beliau tidak didakwa dan dihukumi dua kali untuk kesalahan yang sama. Oleh yang demikian di mana pesalah melakukan kesalahan yang boleh dibicarakan sama ada oleh Mahkamah Sivil atau Mahkamah Syariah, beliau boleh didakwa dalam mana-mana mahkamah tersebut." [17] The learned counsel for the Applicant replied that the issue had concerned whether the LSS had, in the first place, the required power under the FC to even legislate the Impugned Provision. According to him, it was not, at least not at this stage, a question of its implementation. He relied on the doctrine of pith and substance in determining whether the LSS had legislated on a matter that rightly, he had submitted, belonged in the Federal List of the FC. Based upon that doctrine, it was his submission before this court that when the LSS legislated the Impugned Provision, it was legislating on a matter that had touched on criminal law, a matter listed as Item 4(h) of the Federal List. [18] It was also contended by learned SFC that the Muslims in Malaysia are subject to two sets of laws, namely the civil law system which applies to everybody, as well as the Muslim law system. His argument had run like so: "24.1 Mahkamah Persekutuan telahpun memutuskan bahawa orang Islam bukan sahaja tertakluk kepada undang-undang awam yang digubal oleh Parlimen tetapi juga tertakluk kepada undang-undang Negeri yang bersifat keagamaan yang digubal oleh Badan Perundangan Negeri.

2 Perlembagaan telah memberikan kuasa kepada Badan Perundangan Negeri untuk menggubal dan menguatkuasakan undang-undang kesalahan terhadap orang-orang Islam.

3 Perlembagaan telah membenarkan orang-orang Islam di negara ini ditadbir oleh undang-undang peribadi Islam. EJSS 1995 hanya terpakai untuk orang-orang Islam di Negeri Selangor.

4 Oleh itu, orang-orang Islam adalah tertakluk kepada kedua dua undang-undang awam yang digubal oleh Parlimen dan juga undang-undang Negeri yang digubal oleh Badan Perundangan Negeri.

5 Peruntukkan seksyen 28 EJSS 1995 adalah sah dan tidak bercanggah dengan Item 1, Senarai II (Senarai Negeri), Jadual Kesembilan, Perlembagaan dan selari dengan Perkara 74 Perlembagaan Persekutuan." [19] He had cited the case of Zl Publications Sdn Bhd & Anor v. Kerajaan Negeri Selangor [2016] 1 MLJ 153 where the apex court there had made the following remark, which goes: "[31] In conclusion we wish to highlight that a Muslim in Malaysia is not only subjected to the genera/laws enacted by Parliament but also to the state laws of religious nature enacted by Legislature of a state. This is because the Federal Constitution allows the Legislature of a state to legislate and enact offences against the precepts of Islam. Taking the Federal Constitution as a whole, it is clear that it was the intention of the framers of our Constitution to allow Muslims in this country to be also governed by Islamic personal law. Thus, a Muslim in this country is therefore subjected to both the general laws enacted by Parliament and also the state laws enacted by the Legislature of a state." [20] Having perused the submissions advanced by both learned counsel before me, I agree with learned counsel for the Applicant that the submissions that essentially formed the reply by the Respondent did not sufficiently, or at all, address the gravamen of the Applicant's complaint. The Applicant's complaint sought to challenge the very issue of the competency of the LSS to even legislate the Impugned Provision creating for an offence under the Enactment. The Applicant had alleged that the LSS had transgressed into the Federal List, by legislating on a matter on that list, or dealt with by federal law, namely Item 4(h) on List 1 of the FC. As could be seen in the preceding paragraphs, the learned SFC for the Respondent, had submitted that the Impugned Provision in the Enactment, was not identical with the federal law, as contained in the Penal Code, to wit, section 377A of the Penal Code. [21] At this juncture, it would help if the two provisions under scrutiny are reproduced for ease of reference. Section 28 of the Enactment reads as follows: "Section 28. Sexual intercourse against the order of nature. Any person who performs sexual intercourse against the order of nature with any man, woman or animal is guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof." [22] Section 377A of the Penal Code reads as follows: "Carnal intercourse against the order of nature

Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature." [23] As the two provisions under scrutiny were not identical, it was submitted by learned SFC that this application was a frivolous one, devoid of any merit, and therefore ought to be dismissed with costs. [24] To my mind, with respect, the pivotal issue here is whether in legislating the Impugned Provision, the LSS was competent to do so, in light of the Federal List, in particular Item 4(h) which itemized criminal law as a matter that is expressly enumerated under that List 1, namely the Federal List or a matter dealt with by federal law. Whether or not the two above-quoted statutory provisions are not identical with each other, may be a relevant consideration, but definitely it is not a conclusive determinant factor in resolving the issue at hand, as raised in the Applicant's complaint. [25] The LSS had, as was submitted by the learned SFC, legislated the section 28 on the basis that it had jurisdiction in legislating Islamic law, and that the impugned section 28 was aimed at addressing unnatural sexual acts, as being acts which are against the precepts of Islam. [26] As regards the contention by learned SFC that Muslims in Malaysia are subject to two sets of law, learned counsel for the Applicant submitted that he had no quarrel with that, but not without qualification. With respect, I agree with him. As a statement of general principle, the contention that Muslims in Malaysia are subject to two sets of laws is not necessarily incorrect, ipso facto. But that would be subject to the overarching caveat that in so far as they being subject to Muslim law, the Muslim law that seeks to bind them must be first be constitutionally legislated. This is so because although the State legislature is clothed with the power to legislate on matters that pertain to the precept of Islam, that very same power is subject to what may be termed as a preclusion clause which is expressly provided for inside the enabling Item 1, of the State List itself. Item 1 of the State List reads as follows: "LIST II - STATE LIST

Except with respect to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs and the DEFINITION and regulation of charitable and religious trusts, the appointment of trustees and the incorporation of persons in respect of Islamic religious and charitable endowments, institutions, trusts, charities and charitable institutions operating wholly within the State; Malay customs; Zakat, Fitrah and Baitulmal or similar Islamic religious revenue; mosques or any Islamic public places of worship, 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 constitution, Organisation and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines and beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom." [Bold provided by me for emphasis]. [27] In this regard, it was submitted for the Applicant that since the Federal legislature, being the Parliament, had already legislated for offences aimed at criminalising sexual acts by man with animals and sexual acts by man with another person that go against the order of nature, the competency of the state legislature to legislate like offences for sexual acts against the precepts of Islam, which are similar with the Federal criminal law provisions as contained in the Penal Code, is effectively precluded on account of the preclusion clause in Item 1 in the State List. [28] In Sulaiman bin Takrib v Kerajaan Negeri Terengganu (Kerajaan Malaysia, intervener) and other applications (2009) 6 ML 354 ("Sulaiman Takrib case"), Abdul Hamid Mohamad CJ said: "[72] Considering the difficulty to draw the line between the two categories of offences and the fact that the Supreme Court in Mamat bin Daud too did not attempt to lay down the principles for the distinctions to be made, I too shall refrain from attempting to do it as I fear that it might do more harm than good. I would prefer that the issue be decided on a case to case basis. However, if for example, 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'. But, where no similar 'criminal law' offence has been created, then, as in the case of Mamat bin Daud, the court would have decide on it." [29] In the circumstances of this present application, it was submitted by learned counsel for the Applicant that in light of the existence of section 377A of the Penal Code, a statute passed by the federal legislature, the Impugned Provision could not, in all probabilities, be regarded as having been constitutionally legislated by the LSS and is therefore invalid, null and of no effect. [30] Now, what is the threshold that needed to be surpassed in an application for leave pursuant to an Article 4(4) of the FC? In the case of Mamat bin Daud and Ors v. Government of Malaysia [1986] 2 MLJ 192 the leave panel there had shown what would be required of the Applicant in order to be successful in such an application of this kind. Learned Justice Mohd Azmi bin Kamaruddin SCJ had held as follows: "For the applicants to succeed, they must satisfy the court firstly that leave is necessary under Article 4(4) and secondly, that they have an arguable case in that the application is not frivolous." [31] Bearing that in mind, it is my finding that leave is indeed necessary for this application before this complaint by the Applicant could find its way to be fully argued and ventilated before the Federal Court. Leave is necessary because it involves a challenge premised on whether the LSS was legislatively competent when it enacted the Impugned Provision, in light of the fact that section 377A of the Penal Code appeared to be already in place when the former (Impugned Provision) was enacted by the LSS, and the latter being a federal legislation legislated pursuant to Item 4(h) of the Federal List under the FC. As such, leave of the court is required under Article 4(4) of the FC and this application has fulfilled the requirements of Article 4(3) of the FC in that it being a challenge premised on an alleged lack of competency on the part of LSS to enact the Impugned Provision. [See, East Union (Malaya) Sdn. Bhd. v. Government of the State of Johore and Government of Malaysia [1980] 1 LNS 18 FC; Ramasamy a/l Shanmugam v. State Government of Penang and Anor [1986] CLJ Rep 238; and Ah Thian v Government of Malaysia [1976] 1 LNS 3 FC]. [32] As to whether this application is a frivolous one, I had occasion to consider the submissions and the materials placed before me by both learned counsel and I am of the view that this has not been a frivolous application. In fact, far from it, there are merits that are quite apparent in the contentions of the Applicant which, to my mind, deserve mature ventilation before the full court on the constitutionality and validity of the Impugned Provision. See, the then Supreme Court case of Mamat bin Daud and Ors v Government of Malaysia [supra] where it was held, inter alia, as the challenge mounted before the court for leave was concerned with the validity of the legislation on a matter with respect to which Parliament has no power to make law, such application on its facts should be allowed as it was not frivolous. The leave panel of the then apex court therefore granted the leave applied for so as to allow "the applicants to canvass their case before the full court on the constitutionality and validity of the new section 298A of the Penal Code." [33] Indeed, this application before me has been the opposite of what was challenged in the Mamat bin Daud case [supra] in that, if it is to be recalled, there it was the Federal legislature, the Parliament that was alleged to have transgressed into a matter which would appear to be within the exclusive legislative domain of the State legislature, to wit, a matter pertaining to Islamic law. Whereas in this instant case, it was the State legislature [of Selangor] that was alleged to have transgressed into the exclusive legislative domain of Parliament on matters pertaining to criminal law as contained in Item 4(h) of the First List, or a matter dealt with by federal law, otherwise commonly referred to as the Federal List. have deliberately used the words 'exclusive legislative domain' when referring to the Federal and State Lists. That is because there exists the List III, otherwise referred to as the Concurrent List in the FC, wherein matters, upon which both Federal and State legislatures are competent to legislate on, are listed therein, for instance, matters on culture and sports, public health, drainage and irrigation, among others. Yet again, the State legislature shall not legislate on those matters in the Concurrent List, such that they are inconsistent with what the Federal Parliament has already legislated in the latter's exercise of its power pursuant to the Concurrent List. If such a situation arises, the provisions of the Federal Parliament shall prevail over the inconsistent State legislature's provisions. [See, Article 75 of the FC]. [34] Inherent in this contentious issue between the parties in this Application, would be the proper extent to which the preclusion clause ought to operate, in the circumstances of this case. The learned SFC had submitted that the Impugned Provision was not identical with the provisions under section 377A of the Penal Code, which would be apparent, if the former were to be juxtaposed next to the latter. To this, learned counsel for the Applicant had responded by saying that one would have to look at the 'pith and substance' of the provisions under scrutiny. Briefly, according to the doctrine of 'pith and substance', where the question arises in determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter. That would have to be ventilated before the fuller apex court panel that will hear the substantive Application. As was observed by the learned counsel for the Applicant, in Mamat Bin Daud v. Government of Malaysia [1988] 1 MLJ 119, this court did not consider the preclusion clause in Item 1, State List in the FC. Perhaps, in that case, there was no need for their Lordships then, to consider the preclusion clause on the factual matrix as presented before them. Conclusion [35] Viewing this Application in its totality, I am of the considered view that this is Application has fulfilled the two requirements, namely [1] that leave is required and necessary as the Applicant had shown that this complaint of his involved the question of competency of the LSS to legislate on a matter that is on the Federal List, and [2] this Application has not been one that could, in all fairness, be termed as frivolous or an abuse of the court process. The Applicant had shown that he had an arguable case. Leave ought to be granted in this Application before me, so as to allow, borrowing the words of Justice Azmi Kamaruddin SCJ in Mamat bin Daud's case [supra] "the applicant[s] to canvass their case before the full court on the constitutionality and validity" of the Impugned Provision. I therefore hereby grant the Application for leave in terms, as per Enclosure 1. [36] I am of the view as well that costs ought to be in the cause. That, I so order now. Dated: 14 May 2020. Sgd. ABANG ISKANDAR BIN ABANG HASHIM Federal Court of Malaysia Putrajaya Parties appearing: For the Appellant: Mr. Surendra Ananth; Messrs Tan Law Practice For the Respondent: Dato' Masri bin Mohd Daud (together with Miss Siti Fatimah binti Talib); State of Selangor Legal Advisor Office Cases referred to:

Ah Thian v. Government of Malaysia [1976] 1 LNS 3 FC

East Union (Malaya) Sdn. Bhd. v. Government of the State of Johore and Government of Malaysia [1980] 1 LNS 18 FC

Mamat bin Daud and Ors v. Government of Malaysia [1986] 2 MLJ 192

Ramasamy a/l Shanmugam v. State Government of Penang and Anor [1986] CLJ Rep 238

Sulaiman bin Takrib v. Kerajaan Negeri Terengganu (Kerajaan Malaysia, intervener) and other applications (2009) 6 ML 354

ZI Publications Sdn Bhd & Anor v. Kerajaan Negeri Selangor [2016] 1 MLJ 153 Note: This copy of the Court's Grounds of Judgment is subject to formal revision.