Mais respects Federal Court’s decision in unnatural sex case

A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa
A general view of the Federal Court in Putrajaya December 14, 2020. — Picture by Yusof Mat Isa

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SHAH ALAM, March 2 — The Selangor Islamic Religious Council (Mais) and Islamic religious authorities in the state will work with the police to ensure that investigations into the case involving a man who was alleged to have attempted to commit unnatural sex, will be continued according to provisions of the Criminal Procedure Code.

Mais chairman Tan Sri Abdul Aziz Mohd Yusof said the Federal Court’s decision on the matter could not be seen as a form of recognition of the lesbian, gay, bisexual, and transgender (LGBT) community.

“This is because committing sexual intercourse against the order of nature is still a very serious offence that goes against the teachings of Islam, morality and norms of Malaysian society, as mentioned by Allah in Surah al-Syu’ara verses 165 and 166,” he said in a statement today.

On February 25, the Federal Court in a unanimous decision granted a declaration sought by a 35-year-old man that Section 28 of the Syariah Criminal Offences (Selangor) Enactment (EJSS) 1995 is invalid on grounds that it made provision with respect to a matter that the Selangor state legislature was not empowered to make laws and was therefore null and void.

Section 28 of the enactment makes it in an offence for any person who performs sexual intercourse against the order of nature with any man, woman or animal and shall be liable to a fine not exceeding RM5,000 or a maximum three-year jail term or whipping not exceeding six strokes or any combination, on conviction.

Abdul Aziz said that although Mais respected the court’s decision, special meeting was held yesterday to discuss the matter.

“The issue brought before the Federal Court is related to the interpretation, validity and effect of the enactment of Section 28 of EJSS according to the Federal Constitution,” he said.

Abdul Aziz said the Federal Court had decided that although state legislative assemblies can make laws on offences against the precepts of Islam, the powers were limited by the “preclusion clause” and only on matters listed in the State List.

According to him, the preclusion clause is stated in Item 1 of the State List of the Federal Constitution which outlines exceptions to the matters that were included in the Federal list.

As such, he said the state legislative assembly has no power and is not competent to enact the provisions of Section 28 of the EJSS which has been declared as invalid and unconstitutional.

Abdul Aziz said the Federal Court in its decision stated that the Selangor State Legislative Assembly can still validly make laws on offences relating to ‘aqidah’ or the Muslim faith; the sanctity of Islam; and morality.

“Therefore, Mais will continue to support the principle of syariah offences as stipulated in the Federal Constitution and EJSS 1995 to ensure that Islam as the religion of the Federation and the state continues to be preserved,” he added.

The Federal Court on February 25 also declared as unconstitutional a provision in the Selangor syariah law which makes it an offence to engage in unnatural sex.

A nine-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat held that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 relates to matters that fall under the Federal Constitution’s Ninth Schedule Federal list, under Parliament’s power to enact laws.

To that extent, she said Section 28 is inconsistent with the Federal Constitution and is therefore void.

On August 21, 2019, the chief syarie prosecutor through the syariah prosecutor preferred a charge under Section 28 of the enactment against the man in the Selangor Syariah High Court.

The man, whose identity is being withheld on the request of his lawyers, was charged with attempting to commit sexual intercourse against the order of nature with certain other male persons in a house in Selangor on November 9, 2018.

He pleaded not guilty to the charge and his trial at the Syariah High Court has been stayed pending the outcome of his legal challenge. — Bernama

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