KUALA LUMPUR – The Federal Court in a landmark decision today declared that there is one system of general criminal law applicable to all, and another concerning purely religious laws where offences can only relate to matters of religion, lawyers Datuk Malik Imtiaz Sarwar and Surendra Ananth said in a statement.
This breaks down the perception that there are two parallel criminal law systems of equal standing in Malaysia.
“The court clarified that state legislative assemblies can only enact for purely religious offences. Such offences fall within the jurisdiction of the shariah courts.
“This way, the court has addressed the misconception that there are, in effect, two parallel systems of criminal law of equal standing,” they said.
This will result in a reduction of powers in state legislative assemblies to enact legislation for offences against the precepts of Islam.
But, this will only apply to subject matters over which Parliament can make criminal law on and is not confined to where Parliament has made law.
“The court concluded that under the (federal) constitution, it is Parliament that has primacy over criminal law. Although 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,” they added.
Malik and Surendra said that, based on the judgement summaries read by the apex court judges, they considered the issue as one of great constitutional importance.
They represented a man in his 30s who contested a Selangor shariah law provision on sexual intercourse against the order of nature.
Today, the apex court 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.
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.
She added that criminalisation of unnatural sex is one that only Parliament is empowered to enact laws on.
Malik had argued during judicial proceedings that the Selangor legislature had no power to enact such a provision.
His arguments were based on the reasoning that the subject matter is in the federal list of the constitution and Penal Code provisions were enacted to legislate the offence.
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, 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
