The Federal Court of Malaysia on Thursday struck down a state law making LGBT sex a criminal offense. The court found that only the Parliament of Malaysia has the authority to make such actions an offense.
The case stems from a raid on a house in the state of Selangor where authorities charged 11 men with “attempt of sexual intercourse against the order of nature” under Section 28 the Syariah Criminal Offences (Selangor) Enactment 1995. The men were being monitored on the Chinese social media platform WeChat through an undercover operation that consisted of more than 50 religious police.
On appeal, the appellants argued that the legality of Section 28 is invalid because a state legislature does not have the authority to enact such legislation. Nine judges on the Federal Court agreed, stating, “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.”
Criminal Law in Malaysia comes under the Federal List law-making powers, exclusive to Parliament. This means that state legislators are unable to make decisions on laws that fall with Parliament’s jurisdiction when Parliament has not enacted Federal laws regarding that issue.
The decision has been described by several human rights groups as a “small but significant” step towards a more progressive society. Legal protection for the LGBT community is non-existent and same-sex intercourse is still criminal for non-muslims as well under Section 377A of the Penal Code.