Malaysia Federal Court Rules Anti-Sodomy Law Unconstitutional
The Palace of Justice houses the Federal Court of Malaysia, which ruled a Selangor state law on sodomy unconstitutional on February 25 (Wikimedia Commons).
The Federal Court of Malaysia ruled an anti-sodomy law of Selangor state unconstitutional on February 25, declaring that the Selangor state legislature could not supersede federal sharia (religious) law. The unanimous ruling establishes a “clear primacy” of the federal Parliament in creating criminal offense laws.
The anti-sodomy law, formally known as Section 28 of the 1995 Syariah State Criminal Offenses (Selangor) Enactment, punishes those who “perform sexual intercourse against the order of nature with any man, woman or animal” with imprisonment, flogging, or a fine of 5,000 Malaysian ringgit ($1233). Although Section 377 of the Federal Penal Code criminalizes liwat (penetration of the anus), Section 28 is part of a larger framework of state Syariah criminal offense enactments that have been in place since the 1980s, which specifically outlaw gendered same-sex acts and relations. These enactments fall under List II of the Federal Constitution of Malaysia, which stipulates all the powers reserved by state Legislative Assemblies and gives these assemblies the ability to legislate on matters outside federal Parliamentary jurisdiction.
On November 9, 2018, the Selangor Sharia High Court charged an unnamed 35-year-old Muslim man with Section 28 for having “unnatural sex” with other men, some of them non-Muslim, in a household in Bandar Baru Bangi, Selangor. After pleading guilty, the man formally filed for leave, seeking permission to deviate from a normal legal proceeding, at the Federal Court on November 28. Concurrently, he began seeking a declaration that Section 28 violated the Federal Constitution, citing the inability of the Selangor Legislative Assembly to legislate on this specific aspect of shariah law. Federal Court judge Datuk Abang Iskandar Abang Hashim granted the man leave on May 14, 2020, and paved the way for a hearing on the man’s constitutional challenge, which occurred on December 14.
Chief Justice of Malaysia Tan Sri Tengku Maimun Tuan Mat ruled in favor of the man on February 25, stating that both the Selangor Legislative Assembly and the Selangor Islamic Religious Council, a fellow respondent in the case, “had failed to answer satisfactorily on how Section 28 can still be valid despite the preclusion clause.” The clause in question refers to a specific line of Item 1 on List II, which declares that states have the power to punish those violating the “precepts of Islam, except in regard to matters included in the Federal List.”
Chief Judge of the High Court of Malaya Tan Sri Datuk Sri Azahar Mohamed concurred, concluding that the preclusion clause “functions as a limitation imposed by the Federal Constitution” on state legislatures’ ability to make laws on Islamic criminal shariah. In explaining his conclusion, he added: “Put another way, only Parliament has power to make such laws with respect to the offense of sexual intercourse against the order of nature.”
These developments do not exonerate the man from his offenses, and his trial will start soon after the federal ruling. Former Minister of Religious Affairs Mujahid Yusof Rawa also clarified that this ruling should not be viewed as a sign of approval for the LGBTQ+ community in Malaysia. “It is not an issue that we should sensationalize as if unnatural sex and LGBT practices have been given way,” he said in a Facebook post, affirming that the legal dispute was simply over a matter of duplicate and redundant laws.