Federal Court ruling opens floodgates

A detailed study and amendments are needed to ensure the scope of Shariah jurisdictions in the country is preserved


STATE religious authorities are urged to review its respective Shariah laws to prevent unfavourable court interpretation towards Shariah criminal offences going forward.

This was in response to the Federal Court ruling which nullified Selangor Shariah law to criminalise unnatural sex.

Pertubuhan-Pertubuhan Pembela Islam (Pembela) chairman Aminuddin Yahaya said a detailed study and amendments are needed to ensure the scope of Shariah jurisdictions in the country is preserved.

He said the apex court’s decision has opened floodgates to other lawsuits that could challenge the Islamic jurisdictions in the future.

“The ruling provides any party to challenge the validity of Shariah courts. The scenario is unfair to Shariah law and Muslims as a whole,” Aminuddin said in a press conference yesterday.

He also said the ruling has indirectly reduced the power of state rulers who are the heads of Islam in their respective states.

Pembela deputy chairman Datuk Zainul Rijal Abu Bakar said yesterday’s decision — which stated that Section 28 of the Shariah Criminal Offences (Selangor Enactment) 1995 as unconstitutional — was a black mark against the laws on Shariah criminal offences in the country.

He said the ruling implied that homosexual intercourse is a crime subject to the Penal Code and not offences against Islam.

Zainul Rijal, who is also the Muslim Lawyers Association of Malaysia president, said this raised questions if other offences in Islam, such as adultery and accusation of adultery, would be subjected to civil law, too.

He also said Shariah laws, such as Inscribed Stones and Undang-Undang 99 Perak, among others, have been applied before the Federal Constitution was established.

Malaysian Shariah Lawyers Association president Musa Awang also raised similar concerns, adding that the Federal Court’s ruling is viewed as a preliminary of “closing the door” to hudud and qisas implementation in Malaysia, which covers offences that are also provided in the Penal Code, such as stealing (sariqah), robbery (hirabah) and qisas offences such as murder (al-qatl).

The Federal Court yesterday in a unanimous decision ruled that a Selangor Shariah law provision against unnatural sex is invalid as the state legislature has no power to enact such laws.

In a nine-member panel, its chair Chief Justice Tun Tengku Maimun Tuan Mat said the enactment of Section 28 was in contravention of a State List which stipulates that the state legislature has no power to make law regarding matters included under the Federal List.

She also said the Parliament has the primary legislative power provided by the Federal Constitution, while state legislatures have residual powers to enact offences against the precepts of Islam, and the range of offences that may be enacted is wide, but subject to a constitutional limit.

On Aug 21, 2019, a 36-year-old man was charged with attempting to commit sexual intercourse against the order of nature with certain other men in a house in Bandar Baru Bangi, Selangor, on Nov 9, 2018.

The chief Shariah prosecutor proffered a charge under Section 28 of the enactment against the man in the Selangor Shariah High Court.

He pleaded not guilty to the charge and his trial has been on a stay order pending the outcome of his motion.

On May 25 last year, the Federal Court granted leave to the man to commence his legal challenge to declare Section 28 invalid.

In a statement, the man’s lawyers, Datuk Malik Imtiaz Sarwar and Surendra Ananth, said the court has addressed the misconception that there are, in effect, two parallel systems of the criminal law of equal standing.