25 FEBRUARY 2021
Today’s Federal Court decision declaring a law used to criminalise same-sex activity in the state of Selangor to be unconstitutional is a historic ruling, Amnesty International Malaysia said today.
The nine-person Federal Court panel, chaired by Chief Justice Tengku Maimun Tuan Mat, unanimously declared, Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 which criminalises “unnatural sex,” to be void as it is inconsistent with the Federal Constitution and beyond the legislative powers of state governments.
“Today’s decision marks a watershed moment in the struggle for equality in Malaysia,” said Katrina Jorene Maliamauv, executive director of Amnesty International Malaysia.
“For years, LGBTI peoples and human rights groups have campaigned against state laws similar to Selangor’s Section 28, which are in violation of the rights guaranteed under the Federal Constitution. Today, the highest court in the country unanimously agree. We therefore urge the Selangor government to respect the judgment by repealing Section 28 and dropping the case against the individual who filed for the judicial challenge, as well as others facing similar charges.”
In her judgment Chief Justice Maimun explained that even though state legislatures throughout Malaysia have the authority to enact offences against the precepts of Islam, such power is still subject to the constitutional limit. The decision means only Parliament, and not state governments, has the authority to make criminal laws similar to Section 28. While the decision was based on the law in Selangor, other states carry similar enactments that would be similarly unconstitutional which now must also be repealed.
Despite today’s landmark decision, LGBTI people remain unequal in Malaysia. Section 377A, the Federal law criminalising same-sex relations, remains in the Penal Code, making it punishable by up to 20 years’ imprisonment as well as caning. Discrimination within society remains common and hate speech against LGBTI people, whether online or in person, is widespread. Violence, especially against transgender people, continues to occur with alarming frequency.
“The highest court in the country has unanimously stood up for rights guaranteed by the Constitution and that is worth celebrating. It’s also important to recognise the individual who filed the judicial review, whose courage serves as reminder of the bravery we need to make important progress,” said Katrina.
“But it’s important to note that LGBTI people continue to be criminalised under the law, while discrimination, hate and even violence continue to place LGBTI people at a heightened risk of physical and psychological harm. We therefore urge the Federal government to repeal Section 377A urgently.
“We hope today’s decision moves us towards a Malaysia where everyone, regardless of gender and sexual orientation, has the same rights as other Malaysians under our Constitution.”
In April 2018, the Islamic Department of Selangor (JAIS) raided a private event and arrested several men under Section 52 (read together with Section 28) of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalises “attempted sexual intercourse against the order of nature.”
In November 2019, one of the accused (name undisclosed to protect their privacy) has filed two applications for a judicial review of Section 28. The first was on the grounds that it is inconsistent with rights guaranteed by the Federal Constitution, while the second challenged the powers of state governments to enact such a law.
Five other men who were also arrested in 2018 pleaded guilty to the charges in 2019 and were sentenced to a range of fines and imprisonment (up to seven months in prison and a RM4,900 fine) as well as six strokes of the cane. Prior to today’s judgment, their trial remained ongoing.
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