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Malaysia’s Federal Court rules state law banning consensual same-sex conduct is unconstitutional

Malaysia’s Federal Court ruled that a state law banning consensual same-sex conduct is unconstitutional. But this ruling leaves intact a federal statute criminalizing same-sex relations.

Photo by Pok Rie from Pexels.com

Some rainbow development in Malaysia.

On February 25, Malaysia’s Federal Court ruled that a state law banning consensual same-sex conduct is unconstitutional.

The court’s decision stemmed from a 2018 case, wherein state religious enforcement officials arrested 11 men on charges of “attempting” gay sex in a private residence in Selangor. This was based on section 28 of Selangor’s Syariah (Sharia, or Islamic law) criminal enactment.

In November 2019, a court convicted five of these men, sentencing them to fines, imprisonment and six strokes of the cane each.

One of the men appealed, arguing that the enactment of section 28 was ultra vires, or beyond the state’s powers. This is because under Malaysia’s constitution, only the federal government may legislate some aspects of criminal law. The nine-judge panel agreed with the man.

As FYI: This ruling leaves intact a federal statute criminalizing same-sex relations.

The country’s federal laws remain anti-LGBTQIA, with a standing policy that: “Carnal knowledge against the order of nature” or any sexual act involving “the introduction of the penis into the anus or mouth of the other person” is punishable by up to 20 years in prison and mandatory whipping.

There is another law that punishes any sexual act involving “introduction of any object or any part of the body, except the penis into the vagina or anus of the other person.”

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