On 25 February 2021, the Federal Court of Malaysia delivered a landmark judgment, declaring that Section 28 of the Syariah* Criminal Offences (Selangor) Enactment 1995 (the 1995 Enactment), which criminalises ‘unnatural sex’, is unconstitutional. The nine-person bench, led by her learned Chief Justice Tun Tengku Maimun, unanimously held that the subject-matter of this provision is contained in the Federal List and is precluded by the State List, thus not falling within the law-making competency of the Selangor State Legislature. The petitioner in the case (whose identity was anonymised due to privacy reasons) was charged under Section 28 of the 1995 Enactment in Selangor Syariah High Court, for allegedly attempting to commit ‘sexual intercourse against the order of nature with certain other male persons’. The implications of this case include: a) ameliorating the tensions between federal civil law and state Islamic law; and b) providing momentum to the struggle for equality in Malaysia.
Article 74 of the Federal Constitution establishes the law-making competency of Parliament and the state legislatures. The Ninth Schedule of the Constitution provides for the Federal List and the State List. These enumerate the matters which fall within the law-making competency of Parliament and the state legislatures respectively. Matters on Islamic law and Syariah courts fall under the State List. Notably, Syariah law only applies to Muslims and is confined to personal law for Muslims, to the extent consistent with the Constitution. Whilst Islam is the religion of the Federation (Article 3(1)), nothing in Article 3 derogates from any other provision of the Constitution (Article 3(4)). Muslims are undoubtedly subject to civil laws and Syariah laws, but ‘the extent of the application of Syariah laws to Muslims’ is limited by the Constitution (Article 74(3)) (para 59, 68).
There is a longstanding tension between the law-making power of the Parliament and state legislatures over Islamic criminal offences. The Court in this case has reiterated that the creation of criminal offences, as provided in item 4(h) of the Federal List, falls within the competency of the (federal) Parliament. The federal ‘versions’ of the impugned Section 28 of the 1995 Enactment are two sections of the Penal Code: Sections 377 which criminalises bestiality, and Section 377A which criminalises anal and oral sex (para 8). Section 28 of the 1995 Enactment was held inconsistent with the Constitution and was struck down, because the subject-matter fell within the Federal List.
Moreover, it does not matter whether a law on the subject-matter in dispute has been enacted by the (federal) Parliament or the state legislatures, it fundamentally depends on whether the subject-matter falls within the Federal List or the State List (para 52). This is a powerful holding, because even if Parliament were to repeal and abolish Sections 377 and 377A, this does not mean that the state legislatures would then enjoy the power to legislate on Islamic criminal offences on ‘unnatural sex’, because such law-making power on criminal offences falls firmly within the power of the (federal) Parliament as provided in the Federal List.
This case signifies a departure from the majority decision of the Supreme Court (now the Federal Court) in Mamat bin Daud v. Government of Malaysia, which struck down a provision of the Federal Penal Code and arguably overly-extended the states’ jurisdiction over Islamic offences. In the Mamat case, the majority held that the subject-matter of the impugned Section 298A of the Federal Penal Code was on offences related to the religion of Islam, rather than the purported public order offence, thus not falling within the law-making competency of Parliament. The dissenting judgement, however, held that the incidental encroachment on an item in the State List did not affect the valid fact that the impugned federal law, ‘in pith and substance’, fell within the Federal List. Further, the impugned provision does not specify any particular religion.
The struggle for equality in Malaysia
This case marks a significant milestone in the struggle for equality of the LGBTI+ community in Malaysia. The Federal Court rightly invoked Article 5(1) (liberty of the person) and Article 8(1) (equality) in its deliberations before reaching its conclusion (para 30). Nonetheless, the LGBTI+ community in Malaysia still receives unequal substantive and legal treatment as Section 377A in the Penal Code, which criminalises homosexual acts, regrettably, still exists. That said, this case sets an important precedent, opening up the avenue for further challenges to state Syariah laws pertaining to ‘unnatural sex’.
*Syariah is an Arabic loanword in Malay language used to refer to Sharia law in Malaysia.