PUTRAJAYA: Non-Muslims will be discriminated against and are likely to get stiff penalties for sodomy under the Penal Code while Muslims will get a lighter punishment, the Federal Court said in explaining its decision Thursday to rule as unconstitutional a syariah enactment by Selangor.
Chief Judge of Malaya Tan Sri Azahar Mohamed said the discrimination would be wrong as every person must enjoy equal protection of the law under Article 8(1) of the Federal Constitution.
Further, he said, that Article also provided that there should be no discrimination against citizens on religious grounds.
Azahar said this militated the arguments against the co-existence of Section 28 of Syariah Criminal Offences (Selangor) Enactment 1995 and Section 377 of the Penal Code for sodomy, each with distinct punishments.
Azahar said this in his concurrent judgement after the bench earlier allowed a 35-year-old Muslim man’s declaration that Section 28 is unconstitutional as the Selangor state legislature is incompetent to pass the law that makes it an offence to engage in unnatural sex.
Chief Justice Tun Tengku Maimun Tuan Mat, who chaired a nine-member bench, had said the primary power to enact criminal laws lies with Parliament.
On Aug 21, 2019, the chief sharie prosecutor filed a charge under the provision against the man in the Selangor Syariah High Court.
The man is said to have attempted to commit sexual intercourse against the order of nature with other male persons at a house in Selangor on Nov 9, 2018.
The man claimed trial and the proceedings were stayed pending the outcome of his constitutional challenge in the Federal Court.
Azahar said from the facts of the case, the petitioner was a Muslim man and attempted to commit sexual intercourse against the order of nature with certain other male persons, who included three non Muslims.
“If the Syariah Court were to decide that the petitioner is guilty as charged, the maximum sentence that can be imposed is imprisonment not exceeding three years, a fine not exceeding RM5,000, or whipping not exceeding six strokes, or any combination thereof,” he said.
He said Section 28 is also not applicable to the non-Muslims and the Syariah Court has no jurisdiction over them and they can only be prosecuted in the civil court.
He said Section 377 of the Penal Code, which is applicable to them, carries a jail term of up to 20 years and also a fine or whipping.
Males aged below 50 can be caned up to 24 times.
Azahar said it was hard to deny that a non-Muslim would be discriminated against and a Muslim would benefit from a lesser sentence for a substantially similar offence under the provision.
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