The Federal Court has struck down a provision of the Selangor syariah law that criminalises "unnatural sex".
The nine-person bench chaired by Chief Justice Tengku Maimun Tuan Mat today unanimously allowed a man’s legal challenge against Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995.
This was on the grounds that the matter falls under the jurisdiction of federal and not state laws.
The state syariah provision makes it an offence for Muslims in Selangor to perform "sexual intercourse against the order of nature".
The man faces an ongoing related case at the Selangor Syariah High Court, where he has been charged under the provision with an alleged attempt to commit unnatural sexual intercourse.
He had gone to the Federal Court to seek a declaration that Section 28 is invalid, on the ground that it makes provision with respect to a matter with which the Selangor State Assembly has no power to make laws on, and is thus null and void.
The apex bench fixed today to deliver their verdict on the man’s legal bid.
The other members of the bench are 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.
In reading out the unanimous decision, Maimun ruled that Section 28 has not been validly enacted by the Selangor State Assembly.
She said it is because the subject matter of Section 28, touching on the criminalisation of unnatural sex, is one that only Parliament is empowered to enact on.
She pointed out that Parliament has already enacted a federal law criminalising unnatural sex via Section 377A of the Penal Code.
Maimun noted that a state legislature's law-making power is subject to the subject matter listed in Item 1 of the State List of the Federal Constitution, adding that the subject matter of unnatural sex is something already contained in the Federal List (for Parliament law-making power).
She said this must be observed even if the subject matter of unnatural sex is against the precepts of Islam, in relation to a state's power to enact syariah laws.
In Malaysia, the power to make syariah laws falls under the respective states rather than Parliament.
Maimun explained that even though state legislatures throughout Malaysia have the power to enact offences against the precepts of Islam, such power is still subject to the constitutional limit.
"What matter is whether, in pith and substance, Section 28 of the 1995 Enactment relates to a matter which falls under the Federal List. In our judgment, it does.
"Based on the foregoing discussion, it can be postulated that having regard to the preclusion clause in Item 1 of the State List (of the Federal Constitution), when the two legislatures (federal and state) legislate a law concerning the subject matter of criminal law, and the two laws touch on the same matter, the said laws cannot co-exist even if the said law is said to be against the precepts of Islam," she said.
"It is our view that the said Section (28) was enacted in contravention of Item 1 of the State List which stipulates that the state legislature has no power to make law 'in regard to matters included in the Federal List'.
"To that extent, Section 28 of the 1995 Enactment is inconsistent with the FC (Federal Constitution) and is therefore void," Maimun ruled.
Later in a media statement, Malik Imtiaz Sarwar, the man's lawyer, said that the Federal Court ruling is a landmark decision of great constitutional importance.
He explained that the verdict serves to limit the power of the state legislative assembly to enact offences against the precepts of Islam.
Malik said the preclusion applies to not only where Parliament has already made such laws, but also situations where Parliament can make laws criminalising the subject but has not done so.
He said the Federal Court has clarified that the state legislature can only enact purely religious offences whereby such offences fall within the jurisdiction of the syariah courts.
"In this way, the (Federal) Court has addressed the misconception that there are, in effect, two parallel systems of the criminal law of equal standing.
"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 relate to matters of religion.
"This will ensure the law is applied without discrimination," Malik said, referring to a judgment read out by Federal Court bench member Azahar earlier, where the judge agreed with the unanimous verdict.
Azahar had explained that despite the verdict, the states still have the power to enact laws dealing with various other matters touching on the precepts of Islam, such as morality offences of consuming intoxicating drinks and close proximity (khalwat).
He said this is because such subject matters do not fall within the law-making power of Parliament.
When contacted after the Federal Court proceedings today, lawyer Surendra Anand explained that he needs to speak with his client on their next move towards the ongoing syariah court case over alleged unnatural sex.
Surendra is also part of the legal team acting for the man whose legal bid was allowed by the apex court.
"Following the decision, the syariah court ought to drop the charges against him (man) as Section (28) no longer exists, since the apex court has voided it," he said.
The respondents in this matter are the Selangor state government and the Selangor Islamic Religious Council (Mais).
Selangor state legal advisor Salim Soib @ Hamid represented the Selangor state administration while counsel Halimatunsa'diah Abu Ahmad acted for Mais.
Lawyer Andrew Khoo held a watching brief for the National Human Rights Commission (Suhakam) during the Federal Court proceedings which were conducted online via Zoom.