Selangor shariah law on unnatural sex not constitutional, rules Federal Court

PUTRAJAYA: The Federal Court has ruled that the Selangor state legislature is incompetent to pass a shariah law that makes it an offence to engage in unnatural sex.

Chief Justice Tengku Maimun Tuan Mat, who chaired a nine-member bench, said the primary power to enact criminal laws lies with Parliament.

She said Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which allows for punishment for unnatural sex, is unconstitutional.

“The enacted section is also in contrast with the State List under the Federal Constitution. As such, Section 28 is inconsistent and void,” she said in the judgment delivered through a virtual proceeding.

Others on the bench were Court of Appeal president Rohana Yusuf, Chief Judge of Malaya Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim and Federal Court judges Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Zabariah Mohd Yusof and Hasnah Mohammed Hashim.

A 35-year-old applicant, whose identity is being withheld at the request of his lawyers, sought a declaration that Section 28 is unconstitutional.

On Aug 21, 2019, the chief sharie prosecutor decided to file a charge under Section 28 of the enactment against the man in the Selangor Shariah High Court.

He is said to have attempted to commit sexual intercourse against the order of nature with other male persons at a house in Selangor on Nov 9, 2018.

The man claimed trial but the proceedings were stayed pending the outcome of his constitutional challenge in the Federal Court.

Lawyers A Surendra Ananth and Malik Imtiaz Sarwar appeared for the man.

Selangor legal adviser Salim Soib @ Hamid represented the state government as the respondent, and counsel Halimatunsa’diah Abu Ahmad acted for the Selangor Islamic Religious Council as the second respondent.

Lawyer Rahim Sinwan appeared for the Federal Territories Islamic Religious Council as amicus curiae or friend of the court.