Federal Court unanimously declares Selangor Shariah law criminalising ‘unnatural sex’ void, unconstitutional
This does not mean that state legislatures have power to make law on matters that Parliament has not already made law on, and that state legislatures are instead unable to make law on matters that fall within Parliament’s jurisdiction, even if there is no such federal law yet.
(MMO) – 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.
Read more here