Malaysia’s top court to hear challenge to law which punishes gay sex with prison and whipping

Malaysia’s top court will hear a challenge from a man to the Islamic law which punishes gay sex with whipping, prison and fines.

The Southeast Asian country punishes homosexuality under both national law and Islamic law. And the Federal Court case could strike down the punishment under Islamic Sharia law which only applies to Muslims.

Lawyers have not named the Muslim man, in his 30s, to protect his privacy.

He was one of 11 men arrested on suspicion of attempting gay sex during a raid on a private residence in 2018. The raid took place in Selangor, the Malaysian state which encircles the capital, Kuala Lumpur.

Five of the group pleaded guilty and received sentences including jail time, caning and fines last year.

However, the man says Selangor state has no power to enforce the Islamic law when gay sex is also a crime under civil laws.

And now the Federal Court, the highest court, in Malaysia will hear his legal challenge.

Jail, caning and fines

In fact, Malaysia’s civil law is a legacy of the British colonial era. It bans both anal and oral sex with punishments including up to 20 years prison, caning and fines. This is called Article 377A of Malaysia’s Penal Code.

Meanwhile Sharia law courts also claim jurisdiction over Muslims.

In Selangor ‘sexual intercourse against the order of nature’ attracts up to six strokes of whipping, a maximum three year jail term and a fine of up to RM5,000 ($1,168 €1,046).

This is under Section 28 of the Sharia Criminal Offenses Act 1995.

If the Federal Court rules in his favor, it will help stop fundamentalists using ‘unnatural sex’ laws to target LGBT+ people.

The LGBTIQ+ Network of 12 Malaysian LGBT+ organizations has welcomed the Federal Court’s decision to hear his case.

It said: ‘It is clear this state law is being used by authorities to disproportionately criminalise marginalised and persecuted communities based on sexual orientation and gender identity.’

Second constitutional challenge

Meanwhile, the man also has another appeal pending.

In addition to his challenge at the Federal Court, he also lodged a judicial review at the High Court in Kuala Lumpur, the third highest court in the country.

In this judicial review, he argues that Section 28 exceeds the Federal Constitution. Moreover, he says it goes against constitutional rights to life, personal liberty, equality before the law, non-discrimination and freedom of speech, assembly and association.

The High Court has also agreed to hear his case. But it will wait until the more senior Federal Court rules before it goes ahead.

Malaysia’s appalling LGBT+ rights record

Malaysia made headlines around the world when it caned two women for consensual sex in 2018. The punishment took place in front of the judge and an audience of 100 people.

In the same year, police raided Kuala Lumpur’s oldest gay club.

The country has one of the world’s worst LGBT+ human rights records. And LGBT+ campaigners in the country say that attitudes have hardened over the last few years.