Selangor's Chief Syariah prosecutor has dropped charges against the man who went to the Federal Court to challenge the validity of the "unnatural sex" provision in the Selangor state Syariah law.
The man's legal representative, lawyer Syafiq Norizan (above), told Malaysiakini that the Selangor Syariah High Court granted a discharge not amounting to an acquittal (DNAA) to the man on Monday (April 19).
"The Selangor Chief Syariah prosecutor requested the court to rule a discharge not amounting to an acquittal as a response to the recent ruling from the Federal Court.
"As a response, I submit to the court that he should be discharged and acquitted," Syafiq said.
He called for the accused to be acquitted as Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is now void due to the Federal Court's decision.
The Federal Court, on Feb 25, struck down a provision of the Selangor Syariah law that criminalises "unnatural sex".
Syafiq added that there was a total of eight men charged together under Section 28 in the case and called for the other seven men to be acquitted as well. All men were to receive back the money they had paid for bail.
Two legal challenges raised
The men were charged with "attempting" to commit sexual intercourse against the order of nature with certain other men in a house in Selangor on Nov 9, 2018.
Among them, a 35-year-old man filed two separate legal challenges in May 2019 - one at the Kuala Lumpur High Court and another to the Federal Court - based on different legal arguments.
The judicial review application at the High Court sought a declaration that Section 28 is invalid for being inconsistent with the Federal Constitution’s Article 5(1), Article 8, and Article 10, which covers personal liberty, equality before the law, and non-discrimination, as well as freedom of speech, assembly, and association.
The application to the Federal Court was based on Article 4(4) of the Federal Constitution, where constitutional challenges can be made against the validity of any laws.
Unnatural sex provision is void
For the second challenge, the Federal Court's nine-judge panel on Feb 25 unanimously nullified Selangor's "unnatural sex" provision.
The landmark ruling was made on the grounds that the matter falls under the jurisdiction of federal law, not state laws.
The judicial review application at the High Court reportedly was granted leave in January 2020 but it was put on hold while waiting for the Federal Court’s decision.
Remaining judicial review withdrawn
Following the Federal Court's decision and the DNAA ruling of the Selangor Syariah High Court, the man withdrew his first application at the High Court today.
His legal representative Tay Kit Hoo confirmed that his client was withdrawing the application.
The State Chief Syariah Prosecutor and the state government were the first and second respondents.
Selangor Assistant Legal Adviser Husna Abdul Halim who represents the two respondents did not object to the application, according to Tay.
"The court revoked the judicial review application without an order on costs," he was quoted saying by Bernama.
The case management was conducted online before High Court Deputy Registrar Firdaus Sidqi Sharil Azli today. - Mkini
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