THE Federal Court has ruled that a provision of the Selangor syariah law that criminalises “unnatural sex” as invalid and goes against the Federal Constitution.
The nine-person bench chaired by Chief Justice Tun Tengku Maimun Tuan Mat today unanimously allowed a man’s legal challenge against Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995.
According to a Malaysiakini report, this was on the grounds that the matter falls under the jurisdiction of federal and not state laws.
The state syariah provision makes it an offence for Muslims in Selangor to perform “sexual intercourse against the order of nature”.
The man faces an ongoing related case at the Selangor Syariah High Court, where he has been charged under the provision with an alleged attempt to commit unnatural sexual intercourse.
He had gone to the Federal Court to seek a declaration that Section 28 was invalid, arguing that the Selangor State Assembly has no power to make laws on, and is thus null and void.
The other members of the bench 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.
In reading out the unanimous decision, Maimun ruled that Section 28 has not been validly enacted by the Selangor State Assembly.
She said it is because the subject matter of Section 28, touching on the criminalisation of unnatural sex, is one that only Parliament is empowered to enact on.
She pointed out that Parliament has already enacted a federal law criminalising unnatural sex via Section 377A of the Penal Code.
In Malaysia, the power to make syariah laws falls under the respective states rather than Parliament.
Maimun explained that even though state legislatures throughout Malaysia have the power to enact offences against the precepts of Islam, such power is still subject to the constitutional limit.