Terengganu’s lesbian sex offence unconstitutional, says lawyer

Lawyer Aston Paiva says the two women caned for attempted lesbian sex were entitled to file a petition in the Federal Court to strike down the provision and seek compensation. (Wikipedia pic)

PETALING JAYA: A provision in the Terengganu Syariah Criminal Enactment to punish two women for attempting to have sex is unconstitutional as there are federal laws to prosecute such offenders, a lawyer said.

Aston Paiva said Section 377D of the Penal Code allowed the public prosecutor to frame charges against an accused for gross indecency in public. This offence carries a jail term of up to two years.

Lawyer Aston Paiva.

Similarly, he said the Minor Offences Act 1955 empowers the public prosecutor to take action against such offenders for indecent behaviour, which is punishable with a fine of RM25 or 14 days’ jail.

“State legislative assemblies cannot enact ‘criminal laws’ when it is the federal legislature that is empowered to make penal legislation,” he told FMT.

He said this in response to the women, aged 32 and 22, who were convicted of attempting to have lesbian sex in a car last month.

Both were sentenced to six strokes of the cane and a fine of RM3,300. The caning was carried out earlier this week in the presence of about 100 people in a courtroom at the Terengganu Shariah Court.

Musahaqah is an offence under Section 30 of the Terengganu Syariah Criminal Offences (Takzir) Enactment 2001 and is punishable with a fine not exceeding RM5,000 or to imprisonment for a term not exceeding three years, or to whipping not exceeding six strokes or a combination of any.

Section 2 of the enactment defines musahaqah as “sexual relations between female persons”.

Aston said the Terengganu state assembly approved this offence in 2001 but states were only permitted to legislate offences based on precepts of Islam.

“However, these offences cannot be with respect to matters that only Parliament can legislate on, such as criminal law,” he added.

He said the crime of musahaqah in the Terengganu enactment came under offences relating to decency.

He said decency, as English legal history and the Penal Code would demonstrate, is a matter with respect to “criminal law”.

“Section 377D of the Penal Code makes it a criminal offence for persons to commit acts of gross indecency in public,” he said.

In light of the object, purpose and design of Section 377D, the Terengganu assembly could not enact offences relating to decency like Section 30 on musahaqah.

“Section 30 would be invalid and unconstitutional given that the state legislative assembly has no power to make it an offence with respect to criminal law,” he added.

Aston said the women could only be investigated under Section 377D and the public prosecutor could file a charge in the magistrate’s court if he had sufficient evidence.

He said the syarie chief prosecutor of Terengganu would have no jurisdiction to institute prosecutions against any Muslim, given that Section 30 is “unconstitutional”.

“The arrest, detention, prosecution and punishment (fine and caning) of the women is void,” he said, adding that the women were entitled to file a petition in the Federal Court to strike down the provision as unconstitutional.

He said they could claim for compensation from the Terengganu government if they were successful.

Aston said it was also timely for the attorney-general, who is also the public prosecutor, to review the Shariah Courts (Criminal Jurisdiction) Act 1965 to clearly stipulate Muslim law offences that could be tried by the shariah courts.