CLASH OF LEGISLATIVE COMPETENCY ON MATTERS OF OFFENCES RELATING TO DECENCY

Abstract

The Legislative Assembly of the state of Selangor has criminalized sexual intercourse against the order of nature by virtue of S. 28 of the Syariah Criminal Offences (Selangor) Enactment 1995. The power to enforce such law is vested on Jabatan Agama Islam Selangor (“JAIS”). However, the Federal Court’s decision in Iki Putra bin Mubarak v. Kerajaan Negeri Selangor & Anor [2021] MLJU 213 has garnered the attention of the public when the apex court ruled that the Selangor State Legislative Assembly had no power to create the offence of sexual intercourse against the order of nature. The impact of this judgment is immense as it is taking away the power of prosecution of such offence by the Syarie Prosecutor in Selangor. Furthermore, the Federal Court’s judgment also points out that the Penal Code has a similar offence (Section 377A), hence excluding the legislative competence of the state of Selangor to regulate the same. The Iki Putra judgment has become the impetus of this research that aims at identifying and examining the provisions in the Penal Code and Syariah Criminal Offences (Selangor) Enactment 1995 that are considered redundant, with specific reference to offences relating to decency only. In doing so, the research employs qualitative research design. Since this is a doctrinal and library-based research, the research adopts a content analysis method on the primary and secondary materials which include the study into legislation, case law, textbooks and journal articles. The research also applies a comparative approach to determine similarities and differences (if any) between the Penal Code and 1995 Enactment. The finding shows that some offences in both legislations are redundant which will lead to conflict of jurisdiction between civil and Syariah courts. These redundancies will ultimately cause difficulties in the future with the enforcement of Syariah criminal offences.