Federal Court unanimously declares Selangor Shariah law criminalising 'unnatural sex' void, unconstitutional

• Published date: 25 February 2021
• Publication title: Malay Mail Online

The Federal Court's nine-judge panel today unanimously declared that a Selangor state law's provision which made unnatural sex a Shariah offence is invalid and having gone against the Federal Constitution, as such offences fall under Parliament's powers to make laws and not under state legislatures' law-making powers.

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.

The order sought by the man and granted by the Federal Court today is for a declaration that Section 28 is invalid on the ground that it makes provision with respect to a matter which the Selangor state legislature has no power to make laws and is therefore null and void.

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.

Justice Azahar read out a summary of his separate grounds of judgment to explain the important constitutional issues in this case and why he felt the order should be granted to the Malaysian Muslim man, with the chief justice and all the other judges on the panel also agreeing with his judgment.

The facts in this case

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.

The man filed for leave directly at the Federal Court on November 28, 2019 to start court proceedings against the Selangor government to seek a declaration that Section 28 is invalid as the Selangor state legislature has no powers to make such law, with the Federal Court on May 14, 2020 then granting leave for the man to proceed to have his constitutional challenge heard at the Federal Court.

On October 6, 2020, the Federal Court allowed the Selangor Islamic Religious Council (Mais) to be an intervener and join the court case as the second respondent, while the Federal Territories Islamic Religious Council (Maiwp) was not allowed to be an intervener but was allowed to be an amicus curiae.

On December 14, the nine-judge panel at the Federal Court heard the constitutional challenge on Section 28 in the Selangor state law, with all parties including the man's lawyers, the Selangor government, Mais and also Maiwp as the amicus curiae allowed to present arguments to the court.

In the Federal Court's judgments today, two lists in the Federal Constitution's Ninth Schedule were examined, with these two lists stating the different matters that the federal government and state governments have powers to make laws on.

In the Federal Constitution's Ninth Schedule, List I which is also known as the Federal List states what the federal government via Parliament can make laws on, while List II which is also the State List states the matters which state governments through their respective state legislative assemblies can make laws on.

Essentially, the court case was about whether the Selangor state government should not have made a state law - via Section 28 - which makes unnatural sex a Shariah criminal offence, if unnatural sex is a matter which comes under Parliament's power to make laws on instead, based on the Federal Constitution.

What the chief justice said

Under Item 1 of the Federal Constitution's State List, state legislatures can make laws on Islamic law, including the 'creation and...