In a landmark ruling, a Malaysian court has thrown out the 2019 conviction of a man arrested for having gay sex.
On Thursday, the Federal Court of Malaysia vacated charges against a 35-year-old man — whose name was not mentioned in the case — who was rounded up by police during a raid on an alleged gay sex party held at a private residence. Eleven men were reportedly detained and convicted under the Malaysian state of Selangor’s 1995 Shariah law, which prohibits “sexual intercourse against the order of nature with any man, woman or animal.” Under the statute, violators face up to three years in jail and a $1,200 fine.
Several of the men arrested during the raid, which took place in November 2018, already pled guilty to charges and faced a punishment of “fines, imprisonment, and caning,” according to the international advocacy group Human Rights Watch. Others, however, are still awaiting trial over two years later.
But the unnamed plaintiff filed a constitutional challenge to the “unnatural offenses” law. And this week, the nation’s highest court nullified the Shariah codes, finding that the state did not have jurisdiction to enact its own criminal penalties.
In a unanimous, first-of-its-kind decision, Chief Justice Tengku Maimun Tuan Mat wrote that the Federal Territory Islamic Department (JAWI), which is tasked with upholding the Shariah laws, “is subject to a constitutional limit” on their power. The Federal Court also ruled that Selangor’s laws criminalizing homosexuality impinged on parliamentary authority to write and enact legislation.
Malaysia has its own federal laws criminalizing both oral and anal sex, which date back to the British colonial era. Section 377 of the Malaysian Penal Code punishes “carnal intercourse against the order of nature” with up to 20 years in prison, although the statute is haphazardly enforced.
While those laws remain on the books, LGBTQ+ advocacy groups say the Federal Court ruling is a step in the right direction. Numan Afifi, president of the Pelangi Campaign, said the organization is “extremely pleased” with the case’s outcome. “It marks a monumental progress for LGBTI rights in Malaysia,” he said in a statement. “We have worked so hard for so many years to live in dignity without fear of prosecution.”
Gavin Chow, president of the community group People Like Us Hang Out (PLUHO), noted that countless lives had been destroyed by the Shariah laws. Under the Selangor criminal codes, he said that LGBTQ+ people “lost their jobs, were kicked out by family members, ended up being homeless, and became suicidal.”
“After years of hopelessness and suffering, they can finally receive an ounce of justice from this decision,” he said in a press release.
The development, however, follows mixed progress on LGBTQ+ rights in Malaysia, where Deputy Minister for Religious Affairs Ahmad Marzuk Shaary recently proposed harsher penalties under the Sharia laws for same-sex relations. According to Human Rights Watch, he also proposed expanding the laws to criminalize “changing one’s gender and producing or sharing social media content deemed obscene and indecent, including images of non-normative gender expression.”
Transgender people face frequent harassment and persecution by authorities, such as a 2015 conviction against five trans women in the state of Kelantan for “cross-dressing.” They were fined and sentenced to one to two months in prison for violating Shariah codes criminalizing “a male person posing as a woman.”
More recently, a warrant was reportedly issued in Selangor for Nur Sajat, a 36-year-old transgender beauty influencer accused of “offending Islam.” Over 100 officers were reportedly dispatched to ensure her arrest.
Amnesty International Malaysia called the action, which was also launched under the state’s Shariah codes, “a form of intimidation.” “Stop persecuting people for their gender identity and expression, which places LGBTI people at risk of physical and psychological harm,” the human rights organization urged authorities in a tweet.
Neela Ghoshal, associate LGBT rights director at Human Rights Watch, added that cases like these are a reminder that Malaysia’s homophobic and transphobic laws must be scrapped altogether.
“Malaysia’s state and federal statutes that criminalize LGBT people are already out of bounds with regard to international law, and the government seems to be sinking even deeper in its disregard for human rights,” said Ghoshal in a statement. “Rather than enhancing penalties for actions that harm no one, the government should repeal such penalties.”
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