KUALA LUMPUR, May 27 — The Federal Court recently decided that it will proceed to hear a man’s constitutional challenge over a Selangor state law that makes it a Shariah offence to have unnatural sex, with the man’s legal challenge specifically on whether the Selangor state legislative assembly has the powers to enact this state law in the first place.

What is the Shariah offence in question?

This Shariah offence — which is under a Selangor state law applicable only to Muslims — makes it a crime to have unnatural sex and lists out the penalties.

Under Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995, it is an offence for any person to perform "sexual intercourse against the order of nature” with any man, woman or animal, which is punishable by a maximum RM5,000 fine or maximum three-year jail term or maximum six strokes of whipping, or any combination of the penalties. 

How did this case come about?

Here is a quick guide by Malay Mail to the facts of this case based on court documents. (But first of all, keep in mind that the court challenge in the Federal Court is not a challenge against any religion or religious teachings, but is merely a legal issue revolving around the scope of law-making powers by the federal government and state governments under the Federal Constitution.)

A Malaysian man — whose identity is being withheld for privacy purposes — was alleged to have attempted to commit sexual intercourse against the order of nature in November 2018 with certain other male persons in Selangor, and was then charged in the Selangor Shariah High Court in August 2019 under Section 28 of the Selangor state law.

After pleading not guilty and claiming trial in the Shariah court, the man then filed two separate court challenges in the civil courts to ultimately challenge the validity and constitutionality of Section 28 provision that was used to charge him.

Challenge I: The judicial review at the High Court

For the first challenge, the man (applicant) filed on November 20, 2019 an application at the High Court for leave for judicial review, naming the Selangor chief Syariah prosecutor and the Selangor government as the two respondents.

In the judicial review application, the man sought for several court orders, including for a declaration that Section 28 is invalid for being ultra vires or going beyond the powers under the Federal Constitution, and a declaration that Section 28 is invalid for being inconsistent with the Federal Constitution’s Article 5(1), Article 8, Article 10. (Article 5(1) covers the right to life and personal liberty, Article 8 covers the right to equality before the law and non-discrimination, Article 10 covers the right to freedom of speech, assembly and association, with the man in this case arguing that Section 28 infringes on individual dignity, the right to self-determination, right to privacy, and discriminates.)

He is also seeking a court order to prohibit the continuing of Shariah proceedings against him; and court orders to quash the decision to charge him in the Shariah court and to quash the Shariah trial against him. 

It is understood that the High Court in Kuala Lumpur had this January granted leave or permission for the judicial review proceedings to continue, which means it would proceed to hear the actual judicial review application.

When contacted, Surendra Ananth — who is one of the lawyers acting for the applicant in the second challenge at the Federal Court — said the hearing for the judicial review at the High Court has been put on hold while waiting for the Federal Court’s decision.

Surendra also confirmed that the Shariah trial against the client has yet to start.

Challenge II: The constitutional reference to the Federal Court

So back to the challenge at the Federal Court, the same Malaysian man had on November 28, 2019 applied for the Federal Court’s leave to start court proceedings against the Selangor government, to seek a declaration that the Section 28 provision is invalid on the basis that the Selangor state legislative assembly had no powers to make such a law.

The application was made via Article 4(4) of the Federal Constitution, where constitutional challenges against the validity of any laws — on the basis that such laws were made by Parliament or by state legislatures when they had no power to do so or when it does not fall under their respective jurisdictions — can be brought directly to the Federal Court and requires a Federal Court judge’s leave to be heard.

What the Federal Court said

In a 29-page judgment dated May 14, Federal Court judge Datuk Abang Iskandar Abang Hashim decided to grant leave for the court challenge to be heard, as he found that the application had fulfilled the two requirements — by showing that leave is necessary as the case involved the question of the Selangor state legislature’s competency to make laws on a matter that fell under the federal government’s jurisdiction, and as the application was not frivolous or an abuse of court process.

The Federal Court judge also listed excerpts of the legal arguments presented by both the applicant’s lawyers and the Selangor government’s state legal advisor, before adding his own views.

To understand the legal arguments presented, just note that the Federal Constitution’s Ninth Schedule contains two main lists — List I which is also known as the Federal List and List II which is also known as the State List. 

The Federal List lists out matters which the federal government via Parliament can make laws on, while the State List lists out matters which state governments via their respective state legislative assemblies can make laws on.

For the man who brought the constitutional challenge to the Federal Court, his arguments were that the Federal Constitution’s State List’s Item 1 does allow the Selangor state legislative assembly to make laws on the "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”. 

(In other words, the constitutional provision means that state governments can make laws relating to religious offences by Muslims, except for when the matters fall under the federal government’s jurisdiction.)

But noting that the Federal List’s Item 4(h) covers the "creation of offences in respect of any of the matters included in the Federal List or dealt with by federal law” and Item 4 in general puts "criminal law” under the federal government’s jurisdiction, the man argued that the matter of unnatural sex offences mentioned in the Selangor state law’s Section 28 provision is a matter already covered by federal law in the form of the Penal Code’s Section 377 to Section 377E.

The man argued that this meant that the Selangor state legislature went beyond its legislative competence or its powers in creating the Section 28 offence in the state law, as the matter falls under the federal government’s jurisdiction and is already covered in the Penal Code.

As for the Selangor government’s lawyer, his argument was that the Selangor state law’s Section 28 offence was not identical to the Penal Code’s Section 377A on unnatural sex and also had different penalties, further arguing that the non-identical aspect meant the man’s application was frivolous and should be dismissed by the Federal Court. (Section 377A makes it an offence to have unnatural sex through the "introduction of the penis into the anus or mouth” of another person.)

The Selangor government’s lawyer also said that Muslims in Malaysia are subject to two sets of laws — general laws enacted by Parliament and state laws of a religious nature enacted by state legislatures, before noting that the Interpretation Act’s Section 59 provided that a person is not to be charged and punished twice for the same offence if it is an offence under more than one written law and arguing that a person — who had committed an offence that can be on trial in either the Shariah court or the civil court — could be charged in either court.

Interpreting the Selangor government’s argument to mean that it was saying there was nothing wrong if a Muslim alleged to have committed unnatural sex is charged only under Section 28 provided he is not also prosecuted under the Section 377A of the Penal Code, the Federal Court went on to say that the Selangor government’s arguments did not sufficiently address the issue of the Selangor state legislature’s powers to even create Section 28 in the first place.

The Selangor government argued the Selangor state legislature had jurisdiction to make laws on Islamic law and that Section 28 was aimed at addressing unnatural sexual acts as acts being against the precepts of Islam.

Among other things, the Federal Court judge said the non-identical provisions of Section 28 and Section 377A was not a conclusive factor as the main issue was on whether the Selangor state legislature had the power to enact Section 28.

While agreeing with the general principle that Muslims in Malaysia are subject to two sets of laws, the Federal Court judge said the state-enacted religious laws binding them must in the first place be constitutionally legislated.

Ultimately, the Federal Court judge said leave should be granted to allow for the applicant to present arguments before a full Federal Court panel on the constitutionality and validity of the Section 28 provision. This will allow for the matter to be fully and substantially examined.

Surendra said no hearing date has been fixed yet for the Federal Court’s hearing on the application.

In the Federal Court, the man was represented by Surendra and the law firm Tan Law Practice, while the Selangor government was represented by Selangor state legal adviser Datuk Masri Mohd Daud with Siti Fatimah Talib and the Selangor state legal adviser’s office.