Federal Court allows challenge to Syariah jurisdiction on unnatural sex

The Federal Court has granted leave for a challenge filed by a man who was charged in the Selangor Syariah High Court with attempting to commit unnatural sexual intercourse.

The application from the man challenged the constitutionality of Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 on "Sexual intercourse against the order of nature."

According to the court document dated May 14 sighted by Malaysiakini, Federal Court judge Abang Iskandar Abang Hashim stated that merits are quite apparent and the case deserves mature ventilation before the full court on the constitutionality and validity of the impugned provision.

"Leave is necessary because it involves a challenge premised on whether the Legislature of the State of Selangor (LSS) was legislatively competent when it enacted the Impugned Provision, in the light of the fact that Section 377A of the Penal Code appeared to be already in place when the former (Impugned Provision) was enacted by the LSS, and the latter being a federal legislation legislated pursuant to Item 4(h) of the Federal List under the Federal Constitution," read the court document.

The applicant is one of the 11 accused charged in the Selangor Syariah High Court last year. His trial has been stayed pending the outcome of this application.

The man was charged with "attempting to commit" sexual intercourse against the order of nature with certain other male persons between 9pm and 10.30pm on Nov 9, 2018, in a house in Bandar Baru Bangi, Selangor.

Lawyer Surendra Ananth (above), who is representing the applicant, explained that the grounds of the challenge are that the Selangor state legislative body has no power to enact Section 28 because it pertains to criminal law, which falls under federal jurisdiction, and that there is already a federal law on unnatural sex in the Penal Code.

With the leave being granted, the applicant is expected to file the petition to the Federal Court and the Selangor state government would be expected to file its defence as well, said the lawyer.

"No hearing date is fixed so far," Surendra added when contacted by Malaysiakini.

Determining state power over Islamic criminal laws

This case, he said, is only to question the constitutionality of Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, but not Section 377 of Penal Code.

Surendra stressed that the importance of this case is to determine to what extent the state legislature has the power to enact Islamic criminal laws.

"From a legal standpoint, this case is going to be important to determine how much power the state has in making Islamic criminal laws because the important qualification to the power is that a state cannot make laws that are in the Federal List.

"There are a lot of Islamic criminal laws we have now that are related to those in the Federal List. This case will determine the scope of power, or to what extent a state can enact Islamic criminal laws."

The outcome of this challenge would indirectly affect the legitimacy of Islamic criminal laws in other states as well, Surendra added.

The respondent of the case is the Selangor state government, which is represented by the state Legal Advisor Masri Mohd Daud.

The 11 men who were arrested for "attempting to commit" sexual intercourse against the order of nature were charged in batches in the Selangor Syariah High Court in August 2019.

Eight of them were charged under Section 28, read together with Section 52 of the Syariah Criminal Offences (Selangor) Enactment 1995, on "attempt" to commit sexual intercourse against the order of nature

Meanwhile, three of them were charged under Section 46 of the same enactment for abetment.

Five among the 11 have pleaded guilty and were sentenced on Nov 7, 2019.

Reuters reported that the Selangor Syariah Court sentenced four of the men to six months in jail and six strokes of the cane as well as fines of RM4,800. Another man was sentenced to seven months' jail, six strokes of the cane and an RM4,900 fine.

'Show the resilience of LGBT community'

The applicant is one of those who sought legal support from NGOs after facing legal prosecution last year.

A social activist with Justice for Sisters, Thilaga Sulathireh (above), told Malaysiakini that various groups have provided support by assisting the accused to assess the case, analyse the laws and to engage with lawyers and explore all possible ways for justice.

"When we received this case, we could see a new trend emerging in terms of the use of laws that criminalise consensual sexual acts between adults. This really broadens the scope of criminalisation and lowers the burden of proof, among others.

"It is important for us to explore all possible avenues for justice to reduce victimisation and harm on them, as well as the broader LGBTIQ (lesbian, gay, bisexual, transgender, intersex and questioning) persons and communities," Thilaga said.

In light of the growing trend of increased prosecution, Thilaga stressed that this action of challenging the constitutionality of existing Islamic criminal laws is significant as it shows the resilience of the LGBT community.

"We can change the environment that we live in. It's important for LGBTIQ people to know that defending our rights in court is allowed in the Constitution and its impact extends beyond LGBTIQ persons." - Mkini

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