On February 25th, a gay Malaysian man won a breakthrough court battle against Salengor’s Islamic ban on sex “against the order of nature,” drawing the LGBTQ community one step closer to wider acceptance of gay rights in a predominantly Muslim country.
Malaysia’s Federal Court declared that the Selangor state law — which criminalized consensual gay-sex, marking it an offense under shariah law — is unconstitutional. The state legislature has no authority to enact those laws; therefore, the law is invalid because Parliament’s legislation governs these offenses.
JUST IN: Federal Court declares that §28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is inconsistent with the Federal Constitution, and is therefore void.
We are extremely pleased with this historic development. It marks a monumental progress for our community.
— Numan Afifi (@NumanAfifi) February 25, 2021
The plaintiff, whose name is withheld to protect his privacy, filed his petition after being arrested in 2018 for ‘attempting gay sex’ in Selangor. He denies the accusation. According to the unanimous ruling from the nine-member panel of judges, the Muslim man who challenged the legitimacy of Section 28 of Selangor Shariah Criminal Offenses Enactment of 1995 was granted the order he sought.
Selangor’s Section 28 Enactment makes gay sex a shariah offense for “any person” performing “sexual intercourse against the order of nature with any man, woman, or animal.” The penalty for that infraction carries a fine of up to RM5,000; a maximum of three years in jail; being caned up to six times; or any combination of those consequences.
Malaysia Federal Court yesterday ruled unconstitutional #Selangor state syariah law banning consensual same-sex conduct. Ruling leaves intact federal statutes against same-sex relations but brings relief from persecution by religious enforcement officers. https://t.co/x2iWoVpmO5
— Neela Ghoshal (@NeelaGhoshal) February 26, 2021
The order requested by the unnamed plaintiff, and justified by the Federal Court, was for a ruling that by the Section 28 Enactment making gay sex a criminal offense is invalidated since Selangor state legislature has no authority to enact such laws.
Although the ruling does not change the federal ordinance criminalizing gay sexual conduct, human rights and LGBTQ activists celebratedthe news as a “monumental progress for our community,” according to activist Numan Afifi.
The associate director of the LGBT Rights Program, Neela Ghoshal, tweeted that “the ruling leaves intact a federal statute criminalizing same-sex relations but brings relief to those who have faced persecution from religious enforcement agencies enforcing such state laws.”
Malaysia’s top court heard this case after the plaintiff, a man in his 30s, challenged a previous decree convicting him for attempting to have gay sex at a private home in 2018.
The plaintiff, in this case, was among 11 other men arrested for the same charge after police raided the residence.
Five of those men were convicted in November 2019 by a religious court in Malaysia. Four were ordered six months incarceration, six cane strokes, and ordered to pay fines of 4,800 ringgit ($1,180). One other man received a seven-month sentence, a fine of 4,900 ringgit ($1,200), and six cane strokes.
