[FAQ] Federal Court allows challenge to Selangor’s Syariah law against ‘unnatural sex’

By Queer Lapis

Baca dalam Bahasa Malaysia.

The news has just broken on a number of groundbreaking civil court cases that will impact all Malaysians, especially LGBTQ people. 

Sexual intercourse against the order of nature under Section 28 of Shariah Criminal Offences (Selangor) Enactment 1995 is being challenged at both the Federal Court and the High Court. Here is everything you need to know.

What are these cases about?

Queer Lapis reported on the 11 men (now 12) who were charged under Section 28 (read together with Section 52) for attempting to have sex. The men were arrested in November 2018 and have trials in the Syariah courts in late 2019.

One of the men who pleaded not guilty to the charge has gone to civil courts to challenge these charges by filing two applications:

• A judicial review* at the High Court which argues that Section 28 is invalid for going against the human rights principles in the Federal Constitution, and;
• A petition** to the Federal Court, arguing that the Selangor state does not have the authority to enact Section 28.

*Leave for the judicial review was granted in January 2020. Leave means that the judge has established that the case is valid and they have allowed the full and substantive hearing to take place later. However, the judicial review action has been put on hold so that the petition could commence.

**Leave for the petition was granted on 14 May 2020 and the decision was publicised on 27 May 2020.

See here for excellent news coverage by Malay Mail and Malaysiakini.

Is there a summary of the outcome of the Federal Court hearing?

A summary of the leave hearing and the full decision made by the judge can be accessed here.

What are the problems with Section 28?

Here are some infographics that show why Section 28 is unconstitutional and how it impacts our rights.

What are LGBTQ groups saying about this case?

Here is a snippet of the joint statement released by the LGBTIQ network in Malaysia regarding the case:

Spokespersons for the LGBTIQ+ Network, Thilaga Sulathireh, Numan Afifi, and Chong Yee Shan, stated, ‘Based on past experience, some may claim this is petition is against religion, but this is fundamentally a petition against injustice and inhumanity’, adding ‘We hope to discuss the erosion of boundaries between federal and state, privacy and community and reasons for the increasingly hysterical discrimination against LGBT persons.’ 

Although states do have the power to enact Muslim laws, they cannot when a law already exists — as in, Item 1 of the State List which allows for  ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion ‘except in regard to matters included in the Federal List’. Section 28 of the Syariah Criminal Offences (Selangor) overlaps with Section 377 and 377A of the Penal Code, a Federal law. It is inconsistent with the Federal Constitution. 

Read here for the full statement.

I want to join the LGBTQ community in fighting for their constitutional rights! How can I help?

1. Donate. Pelangi Campaign estimates that our community needs to raise at least RM200,000 for the entire duration of this legal battle. The money is needed for legal fees, financial support for the 11 men, and mental health support. Please bank in donations to Pelangi Campaign at 8603744100 (CIMB | CIBBMYKL) and email the slip to ask@pelangicampaign.org
2. Get involved. Fill up this form and we will contact you promptly on how you can help.
3. Share your story. We are collecting stories of LGBTQ experiences for research on how these laws affect us and to raise a case against discrimination. Fill up this form to share them with us confidentially.

Law is not one of my strengths. Is there anything I could read to help me learn more?

Here are some legal resources that Queer Lapis has prepared for your knowledge:

• A general legal overview
• A comprehensive list of laws that target LGBTQ people in Malaysia.
• Our constitutional rights as LGBTQ Malaysians.

External reading and helpful articles:

• Enhancing Syariah courts’ powers
• Jurisdiction of State Authorities to punish offences against the precepts of Islam: A Constitutional Perspective
• Terengganu caning: Was it constitutional?
• Terengganu’s lesbian sex offence unconstitutional, says lawyer
• Should homosexuality be a crime?