Federal Court to deliver decision on gay sex

PUTRAJAYA, 22 Feb 2021:

The Federal Court will deliver its verdict on Thursday in a constitutional challenge brought by a 35-year-old man on a provision under the Selangor syariah law on sexual intercourse against the order of nature.

Lawyer A. Surendra Ananth, who is representing the man, said in a WhatsApp message today the decision of the nine-member bench would be delivered through video conferencing via Zoom application.

On Dec 14 last year, the bench, led by Chief Justice Tun Tengku Maimun Tuan Mat, reserved judgment in the motion initiated by the man to challenge Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 – the provision he was charged under for allegedly attempting to commit unnatural sex.

The other judges who heard the motion were Court of Appeal president Tan Sri Rohana Yusuf, Chief Judge of Malaya Tan Sri Azahar Mohamed, Chief Judge of Sabah and Sarawak Datuk Abang Iskandar Abang Hashim and Federal Court judges Datuk Seri Mohd Zawawi Salleh, Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof and Datuk Seri Hasnah Mohammed Hashim.

On May 25 last year, the Federal Court granted leave to the man to commence proceedings by way of a petition against the Selangor government and for declaration that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 is invalid.

On 21 Aug 2019, the chief syarie prosecutor – through the syariah prosecutor – decided to proffer a charge under Section 28 of the enactment against the man in the Selangor Syariah High Court.

The man was charged with attempting to commit sexual intercourse against the order of nature with certain other male persons in a house in Selangor on 9 Nov 2018.

He pleaded not guilty to the charge and his trial at the Syariah High Court has been stayed pending the outcome of his motion.

On Dec 14 last year, the court heard submissions from the man’s lawyer Datuk Malik Imtiaz Sarwar, who argued the Selangor state legislature did not have the power to enact the provision as the subject matter of the provision – which is unnatural sex – was a matter within the Federal List in the Federal Constitution.

He argued only Parliament has the exclusive power to enact laws that criminalise unnatural sex as it was in relation to the justice system.

Selangor state legal advisor Datuk Salim [email protected], who appeared for the Selangor government, submitted the state law against unnatural sex was valid as it was against the precepts of the religion of Islam.

Counsel Halimatunsa’diah Abu Ahmad, who acted for the second respondent, the Selangor Islamic Religious Council (Mais), supported the state counsel’s argument.

Meanwhile, in KUALA LUMPUR, the High Court today set March 22 for case management of the prosecution’s appeal against the acquittal by a magistrate’s court of lawyer-cum-activist Siti Kasim – from a charge of obstructing a Federal Territory Islamic Religious Department (JAWI) officer from discharging her public duty during an event at a hotel in 2016.

Deputy public prosecutor Izalina Abdullah informed the date after the case management today, which was held in the chambers before High Court senior assistant registrar Farah Azura Mohd Saad.

“The prosecution informed the court that the record for the appeal is not completed yet and requested for further case management,” she said, adding that the counsel for Siti Kasim was not present at the proceeding today.

On Aug 21 last year, the KL magistrate’s court discharged and acquitted Siti Kasim, whose real name is Siti Zabedah Kasim, 58, with resisting arrest by the JAWI officer, Siti Nor Jihan Saleh @ Md Ghazali, 41, at an event at a hotel here at 10.30pm on 3 April 2016.

The charge was made under Section 186 of the Penal Code for obstructing a public servant in discharging her public functions.

Magistrate Tawfiq Affandy Chin made the decision after finding the prosecution having failed to establish the case against Siti Kasim.

It is understood the event was a closed dinner involving the transgender community.

– Bernama