Muslim women’s group Sisters in Islam (SIS) has welcomed the Federal Court ruling declaring as unconstitutional a provision criminalising unnatural sexual intercourse in the Selangor shariah law, saying it will prevent overzealous religious officers from implementing criminal laws which come under the purview of the civil laws.
“The persecution by religious enforcement officers under shariah criminal law has led to discrimination, humiliation, violence and injustice such as seen in raids on private premises (private homes, hotel rooms and others),” the group said.
It gave as example the case of two women in Terengganu who were sentenced to six lashes by the state shariah court in 2018 after they were charged with having a homosexual relationship.
Yesterday, a nine-member bench led by Chief Justice Tengku Maimun Tuan Mat unanimously held that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is void, as it relates to a matter that falls under the federal list in the Federal Constitution, under the Parliament’s power to enact laws.
The section makes it an offence under the state’s shariah laws for any person to perform sexual intercourse against the order of nature with any man, woman or animal, with a fine of not more than RM5,000, a maximum three-year jail term or whipping not exceeding six strokes upon conviction.
Tengku Maimum said state legislatures have no power to make laws on matters that are included in the federal list.
SIS said the decision should not be seen as undermining the religion of Islam or the Malay rulers who are the heads of Islam in their respective states.
“On the other hand, the decision of the Federal Court clarifies the process of enacting laws, especially shariah criminal laws that are seen as going against the spirit of federalism as provided for by the Federal Constitution, the highest law in Malaysia,” it added.
SIS said the decision clearly spelt out the limited powers of state assemblies in enacting Islamic laws.
It said those charged with criminal laws in the shariah courts had faced difficulty getting legal services as their offences were related to religion.
“As a result, many chose to plead guilty without going to trial to avoid embarrassment and humiliation as a result of prosecution under Islamic laws,” said SIS.
SIS said laws enacted under the shariah system are not divine, but a result of human interpretation of the Quran, which in turn was adapted as part of the legislation process in the state assemblies.
“Islamic values such as justice, dignity and love among fellow humans can be upheld by either the Islamic legal or civil legal system.
“The court decision does not weaken Islam in Malaysia. It puts the Islamic and civil legal systems that we have in parallel, where previously there were some uncertainties,” said SIS.