Constitutional review of Section 28 of the Selangor state Syariah Enactment
Constitutional review of Section 28 of the Selangor state Syariah Enactment
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Discrimination and Violence
Freedom of Expression
February 21, 2025
Section 28 is one of numerous state and federal laws that criminalise consensual sex “against the order of nature,” with a maximum penalty of RM5,000, three years in prison, six strokes of the cane, or a combination of the three.
On February 25, 2021, following a constitutional review, the Federal Court found Section 28 of the Selangor Syariah Criminal Offences Enactment 1995 unconstitutional.
The Court affirmed that the state government does not have the jurisdiction to enact Section 28, which criminalises sex against the order nature, due to the preclusion clause in the ninth schedule of the Federal Constitution –
“creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List”.
The Federal Court affirmed that
[46] If we were to adopt the rather simplistic approach advanced by the respondents that it is sufficient to simply satisfy ourselves that Section 28 of the 1995 Enactment is squarely encapsulated within the definition of ‘precepts of Islam’ without regard to the preclusion clause, that would render the preclusion clause otiose (serving no purpose or result).
The decision has a ripple effect on the legality of all laws that criminalise sodomy and sex against the order of nature. However, the Federal Court decision has yet to moot the removal of Section 28 from the Selangor Syariah Enactment or be used to review other similar state syariah laws.
Timeline
November 9, 2018
The arrest
11 men were arrested at a private house party in a raid by Jabatan Agama Islam Selangor (JAIS) officers and the National Anti-Drugs Agency.
During the arrest, JAIS degraded and abused the men. The 11 men were charged under Section 52, which is in conjunction with Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which criminalises “attempted sexual intercourse against the order of nature.”
August 21, 2019
Case mention at the Syariah High Court,
Charges were read out to 5 of the 11 men in the Syariah High Court, and dates for mention for the rest were set in batches.
They were only informed of their charges on the day of mention in court. They were unduly advised to plead guilty for a lesser punishment, and five pleaded guilty without legal representation and having received no prior legal counsel.
All of the 11 men were informed that they also have another charge in the Syariah Lower Court in 2020.
- 5 pleaded guilty.
- 6 pleaded not guilty
November 7, 2019
Five men pleaded guilty
The conviction of the five men who pleaded guilty by the Syariah High Court.
Four individuals were charged with RM4,800, six months imprisonment and six strokes of the cane; they filed four appeals against imprisonment. One was fined RM 4,900, seven months imprisonment and six strokes of the cane.
All 5 attempted to file a stay (suspend the sentence) and appeal on the same day. One individual filed for appeal against caning and imprisonment. Meanwhile, 4 others only filed an appeal for the prison sentence.
November 18, 2019
Five who pleaded guilty were released
The five individuals who pleaded guilty were released after the four of them were caned. The date for their appeal has not been set.
November 19, 2019
Hearing began for 6 others
The hearing began for 6 other men who pleaded not guilty at the Syariah high court.
The hearing began for 6 other men who pleaded not guilty at the Syariah high court. The court set a date in March 2020 for the next hearing. One of the men who pleaded not guilty challenged the charges by filing two applications
- A judicial review at the High Court argues that Section 28 is invalid for going against the human rights principles in the Federal Constitution, and;
- A petition to the Federal Court, arguing that the Selangor state does not have the authority to enact Section 28.
January, 2020
High Court grants leave for judicial review
Leave for the judicial review was granted by the High Court, however, the judicial review action has been put on hold so that the petition could commence.
May 14, 2020
Federal Court grants leave
Leave for the petition was granted by the Federal Court.
May 27, 2020
Federal Court hearing
The Federal Court decided it would proceed to hear the man’s constitutional challenge over the Selangor state law.
The decision was publicised by MalayMail and Malaysiakini.
February 25, 2021
Federal Court declared Section 28 unconstitutional.
The Federal Court declared Section 28 unconstitutional.
In a unanimous decision, the judges declared that the Selangor state legislative assembly does not have the legislative competence to enact Section 28.