Advocacy group LGBTIQ+ Network has welcomed the leave granted by the Federal Court in connection to a petition challenging the constitutionality of Selangor's Syariah Criminal Offences Act covering "sexual intercourse against the order of nature".
"The Federal Court’s decision is particularly welcome given the ongoing national trend of prosecution against LGBTIQ individuals on the basis of attempted sexual intercourse “against the order of nature” which escalated in 2018 when two women were sentenced to fines and six strokes of the cane in an open court for the attempt of musahaqah (sexual relations between women).
"By granting leave for the petition to be heard on its merits, the Federal Court opens up space to scrutinise the law and its wide-ranging adverse impact on LGBTIQ persons," said LGBTIQ+ Network spokespersons Thilaga Sulathireh, Numan Afifi and Chong Yee Shan in a statement today.
They said the case would provide a welcome opportunity for the country to address how anti-LGBTIQ laws perpetuate discrimination, criminalisation and state-sponsored violence against LGBTIQ persons.
This comes after Federal Court judge Abang Iskandar Abang Hashim on May 14 allowed the challenge to Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 on grounds of legislative incompetency.
The petition was filed by a man who was one of 11 charged with "attempting to commit" sexual intercourse against the order of nature with "certain other male persons" in 2018 in a house in Selangor.
"The petition argues that the enactment of Section 28 is beyond the Selangor state’s powers or ultra vires as there are limitations to laws a State government can enact.
"Only the Federal government is allowed to create criminal laws as listed in Item 4 of the Federal List under the Federal Constitution.
"Although states do have the power to enact Muslim laws, they cannot when a law already exists — as in, Item 1 of the State List which allows for ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion except regarding matters included in the Federal List," said the LGBTIQ+ Network.
It claimed that Section 28 of the Syariah Criminal Offences (Selangor) overlaps with Section 377 and 377A of the Penal Code, a Federal law and is, therefore, inconsistent with the Federal Constitution.
LGBTIQ+ Network called for understanding on the issue, saying that based on past experience, "some may claim this petition is against religion, but this is fundamentally a petition against injustice and inhumanity".
"We hope to discuss the erosion of boundaries between federal and state, privacy and community and reasons for the increasingly hysterical discrimination against LGBT persons," the group said.
It said that Section 28 of the Syariah Criminal Offences (Selangor) is among the many state and federal laws that criminalise persons based on consensual sex and actual or perceived sexual orientation.
"By granting leave, the court upholds the spirit of Article 8 of the Federal Constitution, encompassing equal protection principles and due process principles for all."
The group claimed that the scope of Section 28 currently grants state authorities a disproportionate amount of arbitrary power to enforce their pre-existing prejudices and homophobic sentiments which prevents access to justice.
"During the raid, for example, the men were subjected to humiliating and degrading treatment by Jais (Selangor Islamic Affairs Department). They were deprived of legal counsel as well as denied timely and adequate information on their right to legal representation," it claimed.
LGBTIQ+ Network also pointed out that Section 28 is in violation of the Universal Declaration of Human Rights (UDHR) of Article 1, 2 and 7 on the rights to equality, non-discrimination and dignity, and Article 5 on the right to be free from torture and cruel punishment. - Mkini
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