KUALA LUMPUR: The Selangor state legislature has no power to enact law which criminalises unnatural sex as its authority is limited to purely religious offences.
Based on this point, a Federal Court panel led by Chief Justice Tengku Maimun Tuan Mat unanimously ruled that Section 28 of
the Syariah Criminal Offences (Selangor) Enactment 1995 is void.
The Bench ruled that the law was made in contravention of a state list that stipulated that state legislatures have no power to make law with regards to matters already in the Federal list.
“To that extent, Section 28 is inconsistent with the Federal Constitution and is therefore
void, ” she said in delivering the decision via online proceedings yesterday.
The ruling came in light of a 36-year-old man’s challenge at the apex court seeking a declaration that Section 28 is invalid, on grounds that it makes provision with respect to a matter the Selangor state legislature has no power to make laws on, and is therefore null and void.
The man’s name is being withheld for privacy reasons at the request of his lawyers.
Tengku Maimun, who chaired the nine-man Bench, said the primary power of legislation in criminal law resides in Parliament.
“State legislatures throughout Malaysia, however, do have the power to enact laws on offences against the precepts of Islam, ” she said, “and the range of offences is wide.
“Having said that, the power to enact such a range of offences is subject to a constitutional limit.”
The court then allowed the man’s application and made no order as to costs.
Other judges on the Bench were Court of Appeal president Justice Rohana Yusuf, Chief Judge of Malaya Justice Azahar Mohamed, Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim, and Federal Court judges Justices Mohd Zawawi Salleh, Nallini Pathmanathan, Vernon Ong Lam Kiat, Zabariah Mohd Yusof and Hasnah Mohammed Hashim.
On Aug 21,2019, the 36-year-old man was charged under the Syariah Criminal Offences (Selangor) Enactment 1995 at the Selangor Syariah High Court.
He was accused of attempting to commit sexual intercourse against the order of nature with other male persons at a house in Bandar Baru Bangi between 9pm and 10.30pm on Nov 9,2018.
The man claimed trial to the charge and subsequently obtained leave from the Federal Court to commence proceedings by way of a petition against the Selangor government in his bid to seek a declaration that Section 28 of the Enactment was invalid.
The Syariah High Court proceedings were stayed pending the outcome of his constitutional challenge at the Federal Court.
In an immediate statement, lawyers Datuk Malik Imtiaz Sarwar and Surendra Ananth who represented the man, said the Federal Court’s decision had clarified that the state legislative assembly could only enact laws on purely religious offences.
“In this way, the court has addressed the misconception that there are, in effect, two parallel systems of criminal law of equal standing, ” they said.
“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 be related to matters of religion.”
Malik and Surendra said this would ensure the law is applied without discrimination.