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A unanimous landmark decision was made by the Federal Court today, ruling that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is unconstitutional.

Section 28 refers to sexual intercourse against the order of nature.

Any person who performs sexual intercourse against the order of nature with any man, woman or animal is guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.

Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995

However, according to the nine-judge Federal Court panel led by Chief Justice Tun Tengku Maimun Tuan Mat, according to the Federal Constitution such laws fall under Parliament, not state legislative assemblies.

“As such, it is our view that Section 28 was enacted in contravention of Item 1 of the State List which stipulates that the State Legislatures have no power to make law ‘in regard to matters included in the Federal List’.

“To that extent, Section 28 is inconsistent with the Federal Constitution and is therefore void,” she said

The ruling was made following a petition by a Muslim man, whose name has been withheld, accused by the Selangor Syariah Court of attempting sex with other men three years ago.

“Unnatural sex” is still illegal, but…

Lawyers have been quick to point out the ruling today does not mean “unnatural sex” is not a crime in Malaysia as it still falls under Section 377 of the Penal Code but it does clear things up a bit when it comes to Malaysian legal system.

“What this decision means is that state religious officials can no longer enforce State laws on this. But the police may continue to enforce [Section] 377A of Penal Code,” wrote lawyer Lim Wei Jiet on Twitter.

However, Human Rights lawyer Michelle Yesudas tweeted, “One must recognize the importance of this decision: the Courts have risen to its duties in interpreting the Federal Constitution, clearly demarcating the boundaries and powers of the State Legislative Assembly, absolutely necessary when respecting the Rule of Law.”

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