PUTRAJAYA: The Federal Court today held that a Selangor syariah law provision that can jail people for engaging in unnatural sex is invalid as the state legislature has no power to enact such laws.
The ruling was made after the top court allowed a 36-year-old man's legal bid to annul Section 28 of the Syariah Criminal Offences (Selangor Enactment) 1995.
The Muslim man, whose name has been withheld for privacy reasons, had filed a petition to declare the law provision invalid following his arrest for attempting gay sex, three years ago.
In a unanimous decision, Chief Justice Tun Tengku Maimun Tuan Mat said the enactment of Section 28 was in contravention of a State List that stipulates that the state legislature has no power to make law in regard to matters included under the Federal List.
To that extent, she said Section 28 is inconsistent with the Federal Constitution and is therefore void.
She said based on the contention made by the petitioner, two Sections of the Penal Code under the federal law already govern the subject matter of Section 28 and accordingly, the state legislature is incompetent to pass the Section.
Tengku Maimun, who chaired a nine-member panel, said it is clear under the Federal Constitution that the primary legislative power in criminal law lies with Parliament, except for specific matters over which the states shall have legislative powers.
She said the State Legislatures throughout Malaysia have the power to enact offences against the precepts of Islam and the range of offences that may be enacted is wide.
However, she said to enact such range of offences is subject to a constitutional limit.
The court then allowed the man's bid with no order as to costs.
The other judges sitting on the bench were 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 and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk P. Nallini, Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof and Datuk Seri Hasanah Mohammed Hashim.
On Aug 21, 2019, the man was charged with attempting to commit sexual intercourse against the order of nature with certain other men in a house in Bandar Baru Bangi, Selangor, on Nov 9, 2018.
The chief syarie prosecutor through the syariah prosecutor proffered a charge under Section 28 of the enactment against the man in the Selangor Syariah High Court.
He pleaded not guilty to the charge and his trial has been stayed pending the outcome of his motion.
On May 25, last year, the Federal Court granted leave to the man, to commence his constitutional challenge by way of a petition against the Selangor government to declare the Section invalid.
He claimed that the legislature of the state of Selangor has no power to make such laws.
Meanwhile, in a statement, the man's lawyers, Datuk Malik Imtiaz Sarwar and Surendra Ananth, said the court has clarified that the state legislative assembly can only enact purely religious offences which fall within the jurisdiction of syariah courts.
They said the court has also addressed the misconception that there are, in effect, two parallel systems of criminal law of equal standing.
"The court has clarified that there is one system of general criminal law, applicable to all persons, and another system of purely religious law in which offences can only relate to matters of religion.
"This will ensure that the law is applied without discrimination," they said.
The Malaysian Syariah Lawyers Association (PGSM) also issued a statement saying that the court's decision has significant implications for syariah law in the country, especially on matters relating to the State Syariah Criminal Offences Enactment.
Its president, Musa Awang, said the decision today would open the floodgates to other parties coming forward to challenge the provisions under the Enactment.