MALAYSIA: COURT RULES LAW BANNING GAY SEX UNCONSTITUTIONAL

ALEX DASHWOOD WRITES — Malaysia’s top court on February 25th ruled that a Syariah (Sharia) state law banning gay sex “against the order of nature” was unconstitutional. Its ruling exemplifies a step toward strengthening legal protections for the LGBT+ community in the Southeast Asian country.

The case “arises from a 2018 raid on a private residence in Selangor, in which state religious enforcement officials arrested 11 men on charges of ‘attempting’ gay sex.” Of the eleven men present during the raid, five were convicted and sentenced to fines, time in prison, and caning (a form of corporal punishment that involves hard hits from a wooden stick). One of the men—whose identity has been kept confidential for his protection—appealed his conviction to the Malaysian Federal Court.

He argued that “Selangor state was not empowered to enact” the law that was used to sentence him and the four others. His claims were based on the ground that the statute was beyond the state’s power since only the federal government has authority to legislate certain aspects of criminal law. The high court agreed with the reasoning and ruled the law unconstitutional. It is unclear whether or not the other four men were relieved of their convictions.

Despite this ruling, people who are caught performing same-sex conduct in the country are still subject to prosecution. The Court’s judgement does not repudiate federal statutes that criminalize same-sex relations — it only establishes that Selangor’s enforcement of a state Islamic ban violates constitutional limits.

Although the decision does not render federal laws that criminalize same-sex relations unlawful, federal laws are rarely enforced. Additionally, the ruling offers some hope to members of the LGBT+ community in Malaysia who are subject to criminalization from religious enforcement officials.

Overall, the Court’s ruling is monumental for LGBT+ rights in Malaysia and provides an optimistic glimpse toward social progress.

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