Federal Court declares Selangor syariah law criminalising unnatural sex unconstitutional

A nine-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat held that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 related to a matter that falls under the Federal list in the Federal Constitution, under the Parliament's power to enact laws.

She said Section 28 was enacted in contravention of item 1 of the State List which stipulated that state legislatures have no power to make law on matters that were included in the Federal List.

In a unanimous decision, the court granted a declaration sought by a 35-year-old man that Section 28 is invalid on grounds 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.

Section 28 of the enactment makes it a Syariah offence for any person who performs sexual intercourse against the order of nature with any man, woman or animal and shall be liable to a fine not exceeding RM5,000 or a maximum three-year jail term or whipping not exceeding six strokes or any combination, on conviction.

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

The man obtained leave from the Federal Court to commence proceedings by way of a petition against the Selangor government to seek for a declaration that Section 28 of the enactment is invalid.

The man, whose identity is being withheld on the request of lawyers, was charged in the Selangor Syariah High Court in 2018 for attempting to commit sexual intercourse against the order of nature with certain other male persons in a house in Selangor.

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