A victory in court, with a catch

On 25 February 2021, the Federal Court of Malaysia, the country's highest court, declared a provision of the Sharia criminal law of the state of Selangor unconstitutional. The section criminalised "sexual intercourse against the order of nature" and was used against gay men. The nine judges decided unanimously.

The trigger was a raid in November 2018. Religious enforcement officers entered a private house in Selangor and arrested eleven men, accusing them of "attempting" same-sex acts. A year later, five of them were sentenced to fines, prison and six strokes of the cane each. The sentences caused international horror.

One of the men fought back. Instead of submitting to the Sharia court, the thirty-five-year-old took his case to the Federal Court with the support of committed lawyers. His criminal proceedings were suspended pending the decision, and his name was kept secret.

The reasoning was remarkably sober. Chief Justice Tengku Maimun Tuan Mat held that the power to enact criminal law lay with the national parliament. Selangor had exceeded its powers. There was no mention of human rights.

That is precisely where the catch lies. The national Penal Code still threatens same-sex acts with up to twenty years in prison and whipping. It is rarely applied, however. The religious authorities of the states are far more zealous, targeting trans women in particular. Human Rights Watch therefore spoke of a small but significant step.

The ruling nevertheless had an impact beyond Selangor. In February 2024, the Federal Court relied on it when it struck down a whole series of Sharia provisions in the state of Kelantan.