The Muslim man in his thirties – whose lawyer withheld his name to protect his privacy – filed the case after he was arrested in 2018 in the central state of Selangor for attempting gay sex, which he denies.
Same-sex acts are illegal in Malaysia, although convictions are rare. The country, which has 13 countries, has a double-track legal system, with Islamic criminal and family laws applicable to Muslims enforcing the civil laws.
Advocates of LGBT + say Islamic laws are increasingly being used to target the country’s gay community in Southeast Asia, with an increase in arrests and penalties ranging from cane to jail time.
In a unanimous ruling, the Malaysian Supreme Court on Thursday ruled that the Islamic provision used in Selangor was unconstitutional and that authorities had no power to enact the law.
“This is historic. It is monumental to LGBT + rights in Malaysia,” said Numan Afifi, founder of the LGBT + rights group Pelangi Campaign, who was not involved in the case.
Numan hoped that Selangor would immediately repeal the Islamic ban, while other states would follow it.
Despite the ruling, gay Malaysian men are still facing up to 20 years in prison under a British colonial era that bans gay sex, known as Article 377.
“We want to live a dignified life without fear of persecution. Of course, Article 377 is still there – it’s not the end, but it’s a beginning,” Numan told the Thomson Reuters Foundation.
In Malaysia, a country of 32 million where 60% of the population is Muslim, many gay people are not open about their sexuality.
The man who launched the legal challenge argued that Selangor had no power to enforce an Islamic ban on ‘dealing with the natural order’ when gay sex was already a crime under civil laws.
The court agreed, stating that the state’s power to commit such offenses is “subject to a constitutional restriction”, Chief Justice Tengku Maimun Tuan Mat wrote in the ruling.
The Selangor Islamic Religious Council, a respondent in the case, did not immediately respond to a request for comment.
The man involved in the legal challenge was among 11 men arrested for attempting gay sex during a raid in a private residence.
Five of the group pleaded guilty and were sentenced in 2019 to imprisonment, kick-offs and fines, which sparked outrage among human rights activists who said it creates an environment of fear for LGBT + people.
Two women are in 2018 in the area of ’attempted lesbian sex’ under Islamic law in the east coast state of Terengganu, the same year a transgender woman was attacked.