Landmark ruling: Federal Court declares Selangor syariah law criminalising unnatural sex void, unconstitutional

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Syariah lawyers see Federal Court’s ‘unnatural sex’ decision as closing doors to hudud in Malaysia.

Federal Court today ruled that a Selangor syariah law provision is invalid as the state legislature has no power to enact such laws and that the law was also “inconsistent” with the Federal Constitution and therefore void.

The Federal Court today held that a Selangor syariah law provision that can jail people for engaging in unnatural sex is invalid as the state legislature has no power to enact such laws.

The ruling was made after the top court allowed a 36-year-old man’s legal bid to annul Section 28 of the Syariah Criminal Offences (Selangor Enactment) 1995.

The Muslim man, whose name has been withheld for privacy reasons, had filed the legal action by way of a petition to declare the law provision invalid following his arrest for attempting gay sex, three years ago.

In a unanimous decision, Chief Justice Tun Tengku Maimun Tuan Mat, who chaired a nine-member panel, held that Section 28, which makes it an offence to engage in unnatural sex, is “inconsistent” with the Federal Constitution and therefore void.

Reading out a summary of the unanimous judgment, Chief Justice Tun Tengku Maimun Tuan Mat said the Federal Court granted the order sought by a Malaysian Muslim man who was challenging the constitutionality and validity of Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995.

Section 28 makes it a Shariah offence for “any person” performing “sexual intercourse against the order of nature with any man, woman or animal”, with the punishment being a maximum fine of RM5,000 or a maximum three-year jail term or a maximum whipping of six strokes or any combination.

Other judges on the nine-member panel who agreed with the chief justice’s grounds of judgment include President of the Court of Appeal Tan Sri Rohana Yusuf, Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim, Federal Court judges Datuk Seri Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong, Datuk Zabariah Mohd Yusof, and Datuk Seri Hasnah Mohammed Hashim.

Lesbian, gay, bisexual, and transgender (LGBT) activists have since welcomed the court’s decision.

People Like Us Hang Out (Pluho) co-founder Gavin Chow said it showed the “often forgotten” importance of the Federal Constitution in upholding rights in Malaysia.

“Over the course of time, we have dealt with many victims who have suffered under this law, some of them lost their jobs, were kicked out by family members, became homeless or suicidal as a result of the enactment and implementation of this law.

“After years of hopelessness and suffering, they finally can receive an ounce of justice from this decision,” he said.

Numan Afifi, president of the Pelangi Campaign group, said the Federal Court’s decision today was “monumental”, but the fight to ensure the LGBT community’s rights will continue.

FMT

“Criminalisation of consensual same-sex relations is a human rights violation and extremely harmful to our wellbeing. It denies LGBTI community in Malaysia from equal dignity and legitimises stigma, discrimination and violence against them,” he said, adding “I” to the acronym to denote “intersex”.

Chong Yee Shan from Diversity Malaysia agreed with Numan, saying the Federal Court’s decision today was empowering for the LGBT community.

“I think fighting for our basic human rights is a long journey. Today’s decision is us reclaiming our rights, and it will definitely encourage us to continue our journey in reclaiming our rights.

“Really thanks to the legal team, non-governmental organisations (NGOs), and volunteers that have put a lot of effort into this,” she said.

Meanwhile, the Shariah Lawyers Association of Malaysia (PGSM) suggested the court’s decision could mean hudud, the Islamic penal law, cannot be implemented in Malaysia.

In a three-page statement today, PGSM president Musa Awang asserted that the Federal Court’s decision “will open space for anyone else to challenge other provisions contained in Shariah Criminal Enactments of the states”.

In explaining his own understanding of the decision and what he viewed as its impact, Musa said this would mean that states would face difficulties in making state laws on Shariah criminal offences when federal laws already cover the same.

“That decision shows that as long as there are any provisions about a criminal offence in federal laws, then it will be difficult for a state to carry out or enact provisions related to Shariah criminal offences, even though the offence is within the category of offences committed by persons professing the religion of Islam against the ‘precepts of Islam’,” he said.

In a joint statement by lawyers Datuk Malik Imtiaz Sarwar and Surendra Ananth, they noted that today’s decision meant that the power of state legislatures to make laws on offences against the precepts of Islam is limited to matters that do not fall under Parliament’s powers, and that this was even if Parliament had yet to make such laws.

“The court concluded that under the Constitution, it is Parliament that has primacy over criminal law.

“Though the State Legislative Assemblies can enact offences against the precepts of Islam, that legislative power does not extend to matters that Parliament can make criminal law over under the Federal List.

“This serves to limit the power of the State Legislative Assembly to enact offences against the precepts of Islam. To be clear, that preclusion applies as long as Parliament can make criminal law on the subject and is not confined to where Parliament has made law,” the lawyers explained.

“The court has clarified that there is one system of general criminal law, applicable to all persons, and another system of purely religious law in which offences can only relate to matters of religion. This will ensure that the law is applied without discrimination,” the two lawyers further said when explaining the separate grounds of judgment by Chief Justice Tengku Maimun and Chief Judge of Malaya Tan Sri Azahar Mohamed.

Among other things, it was noted by the Federal Court that Parliament had already made laws on the same offence of unnatural sex in Section 28, via Sections 377 and Section 377A of the Penal Code, which is a federal law.

Other lawyers who represented the Muslim man were Honey Tan Lay Ean and Tay Kit Hoo. The name of the Muslim man is being withheld on the request of his lawyers, who had previously highlighted the risks and danger posed if he was to be named publicly.

In August 2019, the Malaysian Muslim man was charged in the Selangor Shariah High Court under Section 28 of the 1995 Selangor state law read together with Section 52 for attempted offences, where he was alleged to have in November 2018 in a house in Bandar Baru Bangi attempted to commit sexual intercourse against the order of nature with other men.