Friday, July 30, 2021

Apex court declares Selangor shariah law criminalising unnatural sex unconstitutional

A nine-member Federal Court bench grants a declaration sought by a man accused of attempting to commit sexual intercourse against the order of nature.

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The Federal Court today declared as void and unconstitutional a provision in the Selangor shariah law criminalising unnatural sexual intercourse.

A nine-member bench led by Chief Justice Tengku Maimun Tuan Mat held that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 relates to a matter that falls under the federal list in the Federal Constitution, under the Parliament’s power to enact laws.

She said Section 28 was enacted in contravention of Item 1 of the state list which stipulates that state legislatures have no power to make laws on matters that are included in the federal list.

In a unanimous decision, the court granted a declaration sought by a 35-year-old man that Section 28 is invalid on grounds that it makes provision with respect to a matter in which the Selangor state legislature has no power to make laws and is therefore null and void.

Section 28 of the enactment makes it a shariah offence for any person to perform sexual intercourse against the order of nature with any man, woman or animal, with the person liable to a fine not exceeding RM5,000 or a maximum three-year jail term or whipping not exceeding six strokes or any combination, upon conviction.

The other judges who presided on the bench were Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Zabariah Mohd Yusof and Hasnah Mohammed Hashim.

The man obtained leave from the Federal Court to commence proceedings by way of a petition against the Selangor government to seek a declaration that Section 28 of the enactment is invalid.

The man, whose identity is being withheld on the request of lawyers, was charged in the Selangor Shariah High Court in 2018 with attempting to commit sexual intercourse against the order of nature with certain other male persons in a house in Selangor.

He pleaded not guilty to the charge and his trial at the Shariah High Court has been stayed pending the outcome of his legal challenge.

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