In a decision handed down yesterday, Malaysia’s highest court– the Federal Court– imposed significant limits on the power of Malaysian states to enact Islamic legal prohibitions, including laws that ban homosexual relationships. The court struck down Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995– a law of the state of Selangor that makes “sexual intercourse against the order of nature with any man, woman or animal” a criminal offense under Shariah law. Sections 377 and 377A of the federal penal code cover the same conduct. As reported by Malay Mail:
Under Item 1 of the Federal Constitution’s State List, state legislatures can make laws on Islamic law … “except in regard to matters included in the Federal List”….
… [T]he judge noted that the preclusion clause states “except in regard to matters included in the Federal List” and not “except in regard to matters included in the Federal Law”.
The judge explained that this does not mean that state legislatures have power to make law on matters that Parliament has not already made law on, and that state legislatures are instead unable to make law on matters that fall within Parliament’s jurisdiction, even if there is no such federal law yet….
With no challenge by any of the parties in the case over Parliament’s powers to make the Penal Code provisions that cover the same matter as Section 28, the judge said the Federal Court must accept that Parliament had competently enacted the Penal Code provisions in line with the Federal Constitution.
Malay Mail reports on the reaction of the Shariah Lawyers Association of Malaysia to the decision.