Man wins first-ever challenge against Malaysia’s Islamic ban on gay sex
Plaintiff avoids prosecution by Islamic courts, but countrywide civil ban on gay sex remains intact
A Malaysian man has won the country’s first-ever legal challenge against Islamic laws banning same-sex relations.
Two years ago, the plaintiff, a Muslim man in his 30s — whose name has been withheld by his lawyer to protect his privacy — was charged with attempting to have “intercourse against the order of nature. The year prior, he was one of 11 men arrested on suspicion of attempting gay sex following a police raid on a private residence.
Five of the men arrested with the plaintiff pleaded guilty to the charge against them, and were sentenced to jail for seven months, received six strokes as part of a public caning, and were forced to pay fines last year, sparking outrage among human rights observers. But the plaintiff maintained his innocence, and argued that Selangor’s religious police had no power to enforce an Islamic ban on gay sex, since gay sex is already criminalized under the national penal code.
Malaysia, where about 60% of the population is Muslim, has a dual-track legal system, with Islamic courts handling some matters for Muslim citizens, and sharia laws set by individual states. But local religious courts’ authority does not trump federal legislation, according to Agence France-Presse.
In an unanimous decision, Malaysia’s top court agreed with the plaintiff’s argument, declaring the religious police’s power “is subject to a constitutional limit,” Chief Justice Tengku Maimun Tuan Mat wrote on behalf of the court.
The high court’s ruling means the Islamic law is overturned and the man’s case should be dropped, his lawyer, Surendra Ananth.
Human rights activist Numan Afifi, the founder of the Pelangi Campaign, an LGBTQ organization, called the decision an “historic development.”
“It marks monumental progress for LGBT rights in Malaysia,” he said. “We have worked hard for so many years to live in dignity without fear of prosecution.”
Numan had hoped Selangor would immediately repeal its Islamic ban, prompting other states within the country to follow suit.
In the meantime, Malaysians can technically face up to 20 years in jail under a British colonial-era law known as Section 377, although federal authorities are much more lax and less zealous about enforcing the ban.
“We want to live in dignity without fear of prosecution,” Numan told the Thomson Reuters Foundation. “Of course Section 377 is still there — it’s not the end but this is a beginning.”
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