KUALA LUMPUR – The Federal Court today unanimously declared that Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995, which criminalises unnatural sex, is inconsistent with the federal constitution and is, therefore, void.
The nine-member panel was deciding on a motion brought by a man in his 30s contesting a Selangor shariah law provision on sexual intercourse against the order of nature.
Chief Justice Tun Tengku Maimun Tuan Mat, when reading the judgement summary, said the 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.
She added that criminalisation of unnatural sex is one that only Parliament is empowered to enact laws on.
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 panel are Court of Appeal president 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.
With the apex court’s decision, the enactment will no longer be in force in Selangor and state authorities cannot use the legislation to arrest or charge anyone.
The charges against the man and others in the same case are expected to be dropped.
On December 14, Tengku Maimum Tuan Mat reserved the decision after hearing submissions by both parties.
On that day, representing the man, Datuk Malik Imtiaz Sarwar submitted that the Selangor legislature does not have the power to enact the provision.
This, he argued, was because the subject matter is in the federal list of the constitution and that Penal Code provisions have already been enacted to address the purpose.
Malik also submitted that only Parliament has the exclusive power to enact laws that criminalise unnatural sex.
Meanwhile, the Selangor government argued that the state law against unnatural sex is valid as it goes against the precepts of Islam.
Among others, it submitted that the state legislature was empowered to enact such laws as per the Ninth Schedule of the federal constitution.
Currently, the Section 377A of the Penal Code – carnal intercourse against the order of nature – carries imprisonment for a term that may extend to 20 years, with those convicted liable to whipping.
Last May 25, the Federal Court granted leave to the man, whose name is being withheld due to privacy concerns, to commence his constitutional challenge against Section 28 of the Shariah Criminal offences (Selangor) Enactment 1995, under which he was charged.
He was allowed to commence the proceedings by way of a petition against the Selangor government. The man had said that the state legislature had no power to make such laws.
On August 21, 2019, the man was charged with attempting to commit sexual intercourse against the order of nature with other male persons in a house in Selangor on November 9, 2018.
He pleaded not guilty to the charge and his trial at the Selangor shariah high court had been stayed pending the outcome of his motion. – The Vibes, February 25, 2021
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