Federal court to decide Thursday on challenge against unnatural sex charge

Lawyer A. Surendra Ananth, who is representing the man, said in a whatsapp message today that the decision of the nine-member bench would be delivered through video conferencing via zoom application.

On Dec 14 last year, the bench, led by Chief Justice Tun Tengku Maimun Tuan Mat, reserved judgment in the motion initiated by the man to challenge Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, the provision he was charged under for allegedly attempting to commit unnatural sex.

The other judges who heard the motion 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 Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof and Datuk Seri Hasnah Mohammed Hashim.

On May 25 last year, the Federal Court granted leave to the man to commence proceedings by way of a petition against the Selangor government and for declaration that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid.

On Aug 21, 2019, the chief syarie prosecutor through the syariah prosecutor decided to proffer a charge under Section 28 of the enactment against the man in the Selangor Syariah High Court.

The man was charged with attempting to commit sexual intercourse against the order of nature with certain other male persons in a house in Selangor on Nov 9, 2018.

He pleaded not guilty to the charge and his trial at the Syariah High Court has been stayed pending the outcome of his motion.

On Dec 14 last year, the court heard submissions from the man's lawyer Datuk Malik Imtiaz Sarwar, who argued that the Selangor state legislature did not have the power to enact the provision as the subject matter of the provision, which is unnatural sex, was a matter within the Federal List in the Federal Constitution.

He argued that only Parliament has the exclusive power to enact laws that criminalise unnatural sex as it was in relation to the justice system.

Selangor state legal advisor Datuk Salim a href="mailto:Soib@Hamid"Soib@Hamid/a, who appeared for the Selangor government, submitted that the state law against unnatural sex was valid as it was against the precepts of the religion of Islam.

Counsel Halimatunsa'diah Abu Ahmad, who acted for the second respondent, the Selangor Islamic Religious Council (Mais), supported the state counsel's argument.