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Monday, February 22, 2021

Federal Court to rule on man’s challenge against unnatural sex charge


A nine-member Federal Court bench will give its decision on Thursday after hearing submissions from lawyers.

PUTRAJAYA: The Federal Court will rule on Thursday on a legal challenge by a man that the Selangor state legislature is incompetent to pass a shariah law that makes it an offence to engage in unnatural sex.

Lawyer A Surendra Ananth said a nine-member bench chaired by Chief Justice Tengku Maimun Tuan Mat will deliver the verdict through a virtual hearing.

“The parties were informed of the judgment date today,” he said in a text message to FMT.

The bench reserved judgment on Dec 14 after hearing submissions from counsel Malik Imtiaz Sarwar, who appeared for the applicant together with Surendra.

Selangor legal adviser Salim Soib @ Hamid represented the state government as the respondent, and counsel Halimatunsa’diah Abu Ahmad acted for the Selangor Islamic Religious Council (MAIS) as the second respondent.

Lawyer Rahim Sinwan appeared for the Federal Territories Islamic Religious Council (MAIWP) as amicus curiae or friend of the court.

The 35-year-old applicant, whose identity is being withheld at the request of his lawyers, says Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is unconstitutional.

Malik submitted that only Parliament has legislative power to enact the Penal Code provisions, and state legislatures would not have the power to enact such an offence under the precepts of Islam if the said offence falls within the definition of shariah criminal law.

“The subject matter of unnatural sex is a matter within the federal list in the Constitution and falls within the ambit of criminal law,” he said.

Salim submitted that the state law against unnatural sex was valid as it was against the precepts of the religion of Islam.

Among others, he submitted that the state legislature was empowered to enact such a law as per the Ninth Schedule of the Federal Constitution.

On Aug 21, 2019, the chief sharie prosecutor decided to file a charge under Section 28 of the enactment against the man in the Selangor Shariah High Court.

He is said to have attempted to commit sexual intercourse against the order of nature with other male persons in a house in Selangor on Nov 9, 2018.

The man claimed trial but proceedings had been stayed pending the outcome of his constitutional challenge in the Federal Court. - FMT

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