Selangor shariah law on unnatural sex invalid, Federal Court rules

The Federal Court, in a landmark decision today, rules that a section of Selangor’s Shariah Criminal Offences Enactment 1995 on unnatural sex as invalid. – The Malaysian Insight file pic, February 25, 2021.

IN a landmark decision, the Federal Court has ruled a section of Selangor’s Shariah Criminal Offences Enactment 1995 on unnatural sex as invalid.

The apex court made the decision today in the case of a 35-year old man who brought a legal challenge against Section 28 of the enactment, which criminalises sexual intercourse against the order of nature.

The man had been charged under this section and is on trial at the Selangor Shariah High Court for the offence he allegedly committed in November 2018.

Malaysiakini reported that Chief Justice Tengku Maimun Tuan Mat today led the nine-member bench in the unanimous decision.

She said that the section had not been “validly enacted by the Selangor legislative assembly”, and that the subject matter of criminalising unnatural sex was only under Parliament’s jurisdiction to enact laws.

The man was charged in the shariah high court on August 21, 2019. 

He was granted leave in May last year by the Federal Court to mount his legal challenge against the state enactment.

During submissions to the apex court in December last year, the man’s lawyers argued that the Selangor state legislature did not have the power to enact the provision as the subject unnatural sex was a matter within the federal list in the federal constitution. As such, only Parliament had the power to enact laws against such an offence.

For the offence of unnatural sex, the Selangor shariah enactment provides for a fine of not more than RM5,000, maximum three years’ jail, or whipping not exceeding six strokes, or a combination of these penalties.

The civil law against unnatural sex is section 377A of the Penal Code, which carries a maximum 20 years’ jail, and also whipping. – February 25, 2021.

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