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KUALA LUMPUR, Feb 25 — Lesbian, gay, bisexual, and transgender (LGBT) activists have welcomed the Federal Court’s decision today to invalidate a Selangor Shariah enactment criminalising “unnatural sex” as unconstitutional.
After the apex court ruled that the enactment encroached on Parliament’s sole authority over criminal laws, People Like Us Hang Out (Pluho) co-founder Gavin Chow said it showed the “often forgotten” importance of the Federal Constitution in upholding rights in Malaysia.
"Over the course of time, we have dealt with many victims who have suffered under this law, some of them lost their jobs, were kicked out by family members, became homeless or suicidal as a result of the enactment and implementation of this law.
“After years of hopelessness and suffering, they finally can receive an ounce of justice from this decision,” he said.
While the decision today appeared to be a victory for the LGBT movement, there remain other laws that still affect the community.
The same Selangor Shariah enactment in today’s decision also contained a Section 27 that criminalises same-sex relations.
The “unnatural sex” offences in the Shariah law stricken down also remain criminal under the civil justice system, with anal and oral sex specifically criminalised under Section 377A of the Penal Code as “carnal intercourse against the order of nature”.
Numan Afifi, activist and founder of the Pelangi Campaign group, said the Federal Court’s decision today was “monumental”, but the fight to ensure the LGBT community’s rights will continue.
“Criminalisation of consensual same-sex relations is a human rights violation and extremely harmful to our wellbeing. It denies LGBTI community in Malaysia from equal dignity and legitimises stigma, discrimination and violence against them,” he said, adding “I” to the acronym to denote “intersex”.
Chong Yee Shan from Diversity Malaysia agreed with Numan, saying the Federal Court’s decision today was empowering for the LGBT community.
“I think fighting for our basic human rights is a long journey. Today’s decision is us reclaiming our rights, and it will definitely encourage us to continue our journey in reclaiming our rights
“Really thanks to the legal team, non-governmental organisations (NGOs), and volunteers that have put a lot of effort into this,” she said.
The Federal Court’s decision today was the result of a Malaysian Muslim filing a case against the Selangor government to seek a declaration that Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995 is invalid as the Selangor state legislature has no powers to make such laws.
The man was charged in August 2019 under the same law for allegedly attempting to commit sexual intercourse against the order of nature with other men at a house in Bandar Baru Bangi in November 2018.
The conclusion to the case today comes at a time when government officials have proposed to increase crackdown on the LGBT community, despite the country being in a crisis due to effects of the Covid-19 pandemic.
Last month, Deputy Minister in the Prime Minister's Department in charge of Religious Affairs Datuk Ahmad Marzuk Shaary, proposed an amendment to the Shariah Courts (Criminal Jurisdiction) Act (Act 355), to allow state Shariah courts to establish harsher sentences for same-sex conduct than the current maximum Sharia sentence permitted under federal law.
Marzuk had also proposed to codify changing one’s gender as a Shariah offence.