Episode 7: LGBT in Malaysia

A heavier punishment towards the Muslim LGBT Community would be imposed through the amendment of Syariah Court (Criminal Jurisdiction) Act, as said by the Deputy Minister of Religious Affairs in the Prime Minister Department. This has raise a grave concern among the society, especially the LGBT community in Malaysia. Therefore, UMCT hope to share our ideas regarding this issue and to inspire you through our law review. Here we go!

INTRODUCTION

Recently, Datuk Ahmad Marzuk Shaary, the Deputy Minister in the Prime Minister's Department (Religious Affairs) has made a statement regarding the government's plans of amending the Syariah Courts (Criminal Jurisdiction) Act (hereinafter referred to as "Act 355"). Such amendment would purport to impose heavier punishments on the lesbian, gay, bisexual and transgender (LGBT) community. Not only has the statement sparked numerous debates and discussions, but it has also triggered various human rights NGOs such as Lawyers for Liberty (LFL) and the KL & Selangor Chinese Assembly Hall (KLSCAH) Women to express their opposing views on the matter. The basis of their contention is that such move would be an act of discrimination and exploitation of equal rights based on gender (Ng, 2021).In addition to firmly opposing the violation of LGBT rights in the name of the Islamic religion, KLSCAH Women is also convinced that such amendment would create more rooms for harassment and violence towards the LGBT community. This would then be contrary to the government’s fundamental duty to protect citizens from discrimination and violation of human rights (Ng, 2021). Amid the heated discussions on this topic, we shall analyse the fate of the LGBT people in Malaysia and what we can do to improve our society, so that the LGBT community will not be oppressed.

BACKGROUND OF LGBT ACCEPTANCE AT INTERNATIONAL LEVEL

The older generation is less likely to recognize and accept the LGBT community as compared to the younger generation. In general, the conservative society believes that the LGBTs violate the law of nature or moral standards and also regard LGBT as a form of mental illness. In addition, the older group of people mostly comprises devout and religious individuals. Due to their conservative nature, coupled with religious teachings against homosexuality, they tend to condemn the LGBT community. Hence, the LGBT community in Malaysia has been marginalized for a long time. Fortunately, there has been a gradual change in the society’s perception towards the LGBT community as exposure to international issues and news on LGBT by both the younger and older generation increases. For example, renowned scientific communities, i.e. the World Health Organization (WHO) has proved that LGBT is not a mental illness but a natural phenomenon by removing homosexuality as a mental disorder and no longer considered sexual orientation as a form of disease (How, 2021). Another factor contributing to the shift of attitudes towards the LGBT people is that the younger generation has shown capability to strike a balance between upholding their religious teachings and standing up for equality regardless of a person's gender and sexual orientation.

In Asia, the progress towards the recognition of LGBT marriage has been alarmingly slow. Taiwan, which has been long seen as a beacon of liberalism in Asia, took the step to become the first Asian country to legalise same-sex marriage in 2019. Within 2020, more than 3500 gay couples have gotten married. However, in certain circumstances, there may be a hindrance of this good news, i.e. LGBT people could only marry foreigners from a country where same-sex marriage is also legal. This would mean that Taiwan has yet to achieve a full recognition of same-sex marriage, and in turn marriage equality has not been fully realised. Still, it is commendable that Taiwan has taken the initiative to move forward, unlike in other Asian countries. For instance, a court in the Philipines rejected a same-sex marriage petition in 2019; Hong Kong has upheld a ban on civil partnerships although gay couples have made small gains in public housing and spousal visa rights; Thailand had also drafted a bill recognizing same-sex couple as civil partners, but progress since has stalled; meanwhile 13 Japanese gay couples sued the government over the right to marriage on 14 February 2019, a day of showing love and affection to our lovers; Singaporean law prohibited sodomy regardless of sex, provided by Section 377A of Singapore’s Penal Code (Beh, 2020).

WHAT IS THE POSITION OF LGBT PEOPLE IN MALAYSIA?

The Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly on 10th December 1948 states that "all human beings are born free and equal in dignity and rights'' in Article 1. However, the United Nations (UN) did not discuss equality regardless of sexual orientation until 1994 where the UN Human Rights Committee ruled that law against homosexuality is violating human rights in the case of Toonen v Australia through International Covenant on Civil and Political Rights (ICCPR). In 2011, UN Human Rights Council expressed "grave concern" at acts of violence and discrimination based on sexual orientation and adopted its first resolution on rights for homosexuals and transgendered individuals (UNFE, 2013). Currently, there are 72 jurisdictions that criminalise same-sex sexual activity and 15 jurisdictions which criminalise the gender expression of transgender people using "cross-dressing", "impersonation" and "disguise" laws (Human Dignity Trust, 2021). Unfortunately, Malaysia is within both categories.

Malaysia, as a sovereign state of the Commonwealth, inherited the historical Penal Code which criminalises "intercourse against the order of nature" under Section 377A. It includes both oral and anal sex, irrespective of whether between those of opposing gender or the same gender. The offence is punishable by a jail term of up to 20 years and whipping as provided under Section 377B. Section 377D on the other hand criminalises acts of "gross indecency" with a penalty up to two years imprisonment and it also applies to both men and women. All these sections, however, are rarely enforced by the authorities although they serve as the basis for the sodomy convictions of Anwar Ibrahim, the former Deputy Prime Minister, in 2000 and 2014 (US Department of State, 2017).

In June 2012, the former Education Minister, Dr. Mashitah Ibrahim stated that the LGBT people are not constitutionally protected by Article 8 as the term "sex" has always been interpreted to refer to either male or female only. Similarly, other legislations governing family law such as Law Reform (Marriage and Divorce) Act 1976 and Islamic Family Law (Federal Territories) Act 1984 provide that a marriage shall be void, inter alia, when the parties are not respectively male and female.

Other than federal laws, State Legislatures also criminalise same-sex relations and gender non-conformity through Syariah laws i.e. sexual relations between male persons [liwat], sexual relations between female persons [musahaqah] and cross-dressing.

Item 1 of the State List in the Ninth Schedule of the Federal Constitution provides that the Islamic law is a matter falling within the jurisdiction of the states. The Court in Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor held that the power granted to the state does not extend to creation of criminal laws, and for the offences created by the state under Item 1, the Syariah Courts would have jurisdiction over the offences only to the extent conferred upon it by the federal law. Therefore, the criminal powers of the Syariah Courts are provided under Act 355 which was enacted by the Parliament rather than State Legislatures. Act 355 provides that the jurisdiction of the Syariah Courts shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding RM5,000 or with whipping exceeding six strokes or with any combination thereof.

Dissatisfaction arose in both Kelantan and Terengganu when the maximum penalty that can be imposed by the Syariah Courts is much lower than the Civil Courts [under the Penal Code]. Therefore, the Syariah Criminal Enactment (II) 1993 of Kelantan and the Syariah Criminal Enactment 2003 of Terengganu were passed in the respective states. However, the enforcement of both instruments have encroached the penal laws including Section 377A of Penal Code which falls within the jurisdiction of the federal authority. As a result, the Enactments have been suspended due to their inconsistency with the Constitution. Notwithstanding the controversy, an amended Enactment was unanimously passed by the Kelantan State Legislature on 19th March 2015 (Malik Imtiaz Sarwar, 2016). Due to the limitation imposed by Act 355, Abdul Awang tabled a private members bill to amend Section 2 of Act 355 to vest the Syariah Courts with the power to impose all sentences prescribed under Islamic law except death sentences, but the attempt failed due to the withdrawal of support from the ruling party at that time.

Prior to 2018, Syariah Courts had never actually imposed caning sentences for same-sex conduct, but on 3rd September 2018, two women who engaged in same-sex relations were whipped six times at the Syariah High Court of Terengganu. The sentence was criticised on the ground that the Prison Act 1955 and Prison Regulations 2000 stipulate that caning can only be carried out against prisoners and Section 289 of the Criminal Procedure Code prohibits corporal punishment against female prisoners of any age (Justice for Sisters, 2018). However, in November 2019, the Selangor Syariah Court sentenced five men to fines, imprisonment, and whipping for engaging in gay sex.

Other than same-sex relations, as mentioned above, cross-dressing, which refers to "the act of a person who dresses in the clothes of the opposite sex", is also a crime, where all 13 states prohibit Muslim men from “dressing as women” while three states crminalise Muslim women “posing as men”. For example, Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992 made it an offence for any male Muslim person to wear a woman’s attire or to pose as a woman.

In Muhamad Juzaili Bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors, the appellants who were diagnosed with a medical condition known as gender identity disorder (GID) had been repeatedly detained, arrested and prosecuted by the religious authority in Negeri Sembilan. Due to the risk of arrest and prosecution which were discriminatory and oppressive, the appellants filed a judicial review against Section 66 of the Enactment at the High Court and later appealed to the Court of Appeal.

The Court of Appeal ruled in favour of the appellants and adopted the Indian case of National Legal Services Authority v Union of India and Others with similar material facts. The Indian Court held that the freedom of speech and expression embodies the rights to expression of his self-identified gender rather than the one assigned at the time of birth. With respect to personal liberty [under Article 5(1) of the Malaysian Federal Constitution], the right to privacy is effectively a part of the personal liberty. The Court also accepted the argument in Sivarasa Rasiah v Badan Peguam Malaysia & Anor that any restriction on freedom of expression must be reasonable but Section 66 on the other hand has placed the appellants with GID to live in “insecurity and vulnerability” and directly affects the appellants’ right to live with dignity. Hence, the impugned section was declared to be unconstitutional.

However, Juzaili was reversed on appeal by the Federal Court on procedural grounds where the leave was needed from the Federal Court to determine the constitutionality of the enactments. Nonetheless, the Federal Court made no comment as to the substantive reasoning of the Court of Appeal’s judgement. Therefore, it is suggested that the reasoning by the Court of Appeal remains good law (Usharani, 2017).

THE JOURNEY TO EQUAL RIGHTS

As reality stands, the LGBT community faces a lot of hardships in this country. For the time being, as legalising LGBT seems out of reach in Malaysia, the local LGBT community continue to strive for the end of discrimination that has constantly been directed towards them; what they want is simple ― human rights(The Nation, 2018).

According to Salim Bashir, the President of the Malaysian Bar, the LGBT community should also be entitled to equal protection in pursuant to Article 8(1) of the Constitution, as well as Article 5 (New Straits Times, 2021). They should not be treated with discrimination and harassment from the public merely because they are just being the best version of themselves. To illustrate the discrimination faced by these groups of people, society is of the view that it is not right for a guy to behave like a girl and vice versa; many parents would teach their children to avoid LGBT people and some will go as far as making fun of the LGBT people (Ellis-Peterson, 2018). The case of T. Nhaveen in 2017, who was humiliated and beaten to death by his high school classmates in Georgetown for being ‘effeminate’, as well as a girl who was killed in Kuantan because she was a transgender (Ghoshal, 2019) further strengthens the oppression and discrimination towards the LGBT people, despite the fact that these people did not commit any wrongs to harm others. As the LGBT activists in Malaysia aim for the decriminalisation of LGBT acts, the first step should be to stop demonising the LGBT community. Notwithstanding the issues regarding one’s religion, LGBT people are still human beings and should be treated equally like any other citizens according to the Constitution.

In Malaysia, there are a few human rights organisations such as SUARAM, SUHAKAM and individual LGBT activists such as human rights lawyer Siti Kassim and online influencer Arwind Kumar who have often voiced out in support and solidarity with the LGBT community. Despite all the efforts made, the journey towards decriminalisation is still a very long way to go (Leong, 2018). Firstly, the voices of support are still a minority compared to the conservative voices. Studies have shown that more than 80% of Malay people who made up 60% of the population in Malaysia support the idea to enhance punishments on LGBT people as well as those who support them. Conservative views of the non-Malay people are also on the majority side (Haziq, 2020). Besides, the voices of LGBT activists were also often restricted from the administration aspect. To illustrate, portraits of LGBT activists were removed from a cultural show during the Penang George Town festival; (The Nation, 2018) the former Youth Minister Syed Saddiq’s political assistant had to resign for being an LGBT activist after receiving threats and harassments from the internet (Reduan, 2018).

In fact, voices of the LGBT people have always been restricted. While Malaysians, especially the younger generation, get increasingly exposed to the idea of equal treatment of the LGBT people, the Department of Islamic Development (JAKIM) and the Malaysian Communication and Media Communication (MCMC) would then work together to monitor LGBT activities online (Haziq, 2020). This has caused a lot of websites or web pages which have been promoting their support towards the LGBT group to be banned in Malaysia. Besides, the government agencies of Malaysia also organised competitions and activities which are seemingly efforts of conversion therapy, i.e. to spread the ideology of leading the LGBT people back to ‘normal’ (Heffer, 2017). Conversion therapy will not and never be the help that the LGBT people need as such draconian act will only further promote fear and stigma among the society (Malaysian AIDS Council (MAC), 2018). In addition, it will be an infringement towards human rights, as well as fundamental liberties provided in the Constitution, causing mental and potential medical harm towards the LGBT people alongside with increased discrimination (Free Malaysia Today, 2020). Nevertheless, the younger generation’s realisation for the need of equal rights and non-discrimination has illuminated the once seemingly hopeless future for LGBT in Malaysia. For instance, R.AGE, a youth-led newspaper outlet, has been covering issues to raise awareness on school-level bullying against students who are mocked and tyrannised for being 'soft' and ‘pondan’ (Leong, 2018).

From the political point of view, a government which is not afraid of the extra-conservative views and is brave enough to change the political landscapes in this country is needed to stop the discrimination towards the LGBT people. During the governance of Pakatan Harapan (PH), it was once promised to us that they would improve human rights in Malaysia. However, these promises were quashed by issues such as the caning of two lesbian women in 2018. The PH government's act of breaking such promises signified they value their political careers over the rights of the marginalised. Hence, LGBT became one of the issues condemned by the PH government, making their aims for better human rights despicably redundant (Preeti, 2019). With ultra-conservative political parties like PAS gaining stronger influences in our country, the fights of the LGBT community for equal rights may possibly be halted (Human Rights Watch, 2021). Until then, they can only continue their efforts in combating the stigma and raising awareness for non-discrimination of the LGBT people in the country.

CONCLUSION

In Malaysia, the development of LGBT rights is rather slow as compared to the West. The acceptance towards LGBT rights is considered as "western values" in the eyes of majority Malaysians, which is impossible to be applied here due to the distinct cultural differences. The rejection towards LGBT rights by the people in Malaysia has been proven by the move of its government, i.e. going through the tenure of Barisan Nasional or even Pakatan Harapan. In the current Perikatan Nasional government, which is considered a rather conservative coalition, their non-tolerance was proven by the current stance made by the Minister of Religious Affairs as well as the Prime Minister (Free Malaysia Today, 2021). This move towards LGBT rights is not the mere rejection or opinion of the members in the Executive, but a supporting voice to the view of the public, becoming a tool in obtaining ballots from voters. Therefore, when the government expressed their rejection, it is the echo of the majority’s voices towards LGBT rights.

Furthermore, even Singapore, where the cultural and racial composition among the people are very much similar to our country, still does not accept LGBT rights as of today, even though their citizens are relatively liberal and are more exposed to international issues. LGBT conduct remains punishable under Singapore's Penal Code. In addition, since the rise of the Perikatan Nasional government, there have been calls by the members of PAS purporting to push for an oppressive agenda that will turn Malaysia into a more conservative society. This regressive agenda promotes a stricter version of Islam with suggestions to arrest and flog LGBT people or their supporters. For instance, there have been similar threats made towards Nur Sajat, a local transgender entrepreneur (How, 2020).

Through such “developments” within the nation, there is little hope for LGBT people to obtain rights which are equal to the heterosexual people. What can be hoped from our society today is to first stop discriminating against LGBT people in terms of looks, mannerisms and behaviour. Truth be told, it would not be easy to reconcile the culture, taboo and sensitivity of the people. However, what is for sure is humanity and religious teachings promote respect and kindness towards every being in the world, regardless of the differences, with the spirit of our Federal Constitution.

REFERENCES

Cases

Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 3 MLJ 513

National Legal Services Authority v Union of India (2014) 3 MLJ 595

Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 2 MLJ 241

Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333

Legislations

Federal Constitution

Penal Code (Act 574)

Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355)

Syariah Criminal Enactment (Negeri Sembilan) 1992

Journal Articles

Hélie, A. (2012). Sexual Rights Advocacy in Muslim Contexts: Shifting Notions of Culture and Tradition. Proceedings of the Annual Meeting (American Society of International Law),106, 57-60. doi:10.5305/procannmeetasil.106.0057

Sarwar, M.I. (2016). Confronting the Constitutionality of Hudud. Malayan Law Journal, 4, xii

Balasingam, U. & Qamar, S.Q. (2017). Between Lex Lata and Lex Ferenda: An Evaluation of the Extent of the Right to Privacy in Malaysia. Malayan Law Journal, 4, xxix.

Online Newspapers Articles

Ellis-Peterson, H. (2018, February 12). Malaysian Newspaper Publishes 'how to spot a gay' Checklist. The Guardian. Retrieved from https://www.theguardian.com/world/2018/feb/12/malaysian-newspaper-sinar-harian-publishes-how-to-spot-a-gay-lgbt-checklist

Haziq, N.M. (2020, January 31). LGBT Rights Being Swept Aside By Religious Conservatism. Malaysiakini. Retrieved from https://www.malaysiakini.com/news/509088

Heffer, G. (2017, June 3). Anger Over Malaysia's 'prevent' homosexuality Film Competition. Sky news. Retrieved from https://news.sky.com/story/anger-over-malaysias-prevent-homosexuality-film-competition-10903201?dcmp=afc-ROI:nc_AWIN&utm_source=IE-trading&utm_medium=IE-affiliate&awc=12422_1613222030_5ed1ec4ab8799fba91d18fbab692ba3d&dclid=CjgKEAiAjp6BBhCI8Yz-0JnViHISJACryW4pgfduj7pQdEG54_ZK2C06XxoGo0pItKDsXheRHhIUbPD_BwE

Preeti, J. (2019, November 20). Malaysia's LGBT Community Under Siege As Government Ignores Abuse. Nikkei AsiaI. Retrieved from, https://asia.nikkei.com/Politics/Malaysia-s-LGBT-community-under-siege-as-government-ignores-abuse

Reduan, H. (2018, July 23). LGBT Rights Protected But Must Abide By Malaysian Laws, Says Minister. New Straits Times. Retrieved from https://www.nst.com.my/news/nation/2018/07/393500/lgbt-rights-protected-must-abide-malaysian-laws-says-minister

(2018, September 10). Malaysia Dashes LGBT Hopes For Change. The Nation. Retrieved from https://docs.google.com/document/d/1HSZLERwSPKiz2h2M4juVoMWSoEAxOoZiLZOU-TVj9Zk/edit

(2020, July 8). UN Expert Urges Global Ban On Gay ‘Conversion Therapy’. Free Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/world/2020/07/08/un-expert-urges-global-ban-on-gay-conversion-therapy/

(2021, January 21). LGBT Community Deserves Equal Protection Under The Law. New Straits Times. Retrieved from https://www.nst.com.my/news/nation/2021/01/659492/lgbt-community-deserves-equal-protection-under-law

(2021, January 25). No Place For LGBT Malaysians? The ASEAN Post. Retrieved from https://theaseanpost.com/article/no-place-lgbt-malaysians

(2021, January 23). Rights of LGBTs cannot be violated. Malaysiakini. Retrieved from https://m.malaysiakini.com/letters/560129

(2021, January 19). Govt mulls harsher laws against LGBT. Free Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/nation/2021/01/19/govt-mulls-harsher-laws-against-lgbt/

(2020, July 2). LGBTQ+ Malaysians still deserve a better future. Malaysiakini. Retrieved from https://m.malaysiakini.com/letters/532679

(2020, May 21). 'Happily ever after' eludes Taiwan, a year after Asia's first gay marriages. Reuters. Retrieved from https://www.reuters.com/article/us-taiwan-lgbt-rights-feature-trfn-idUSKBN22X03A

(2019, September 3). Philippines high court rejects gay marriage appeal. Baptist Press. Retrieved from https://www.baptistpress.com/resource-library/news/philippines-high-court-rejects-gay-marriage-appeal/

(2019, February 14). In a first, LGBT couples sue Japan over constitutionality of not recognizing same-sex marriage. The Japan Times. Retrieved from https://www.japantimes.co.jp/news/2019/02/14/national/crime-legal/first-lgbt-couples-sue-japan-not-recognizing-sex-marriage/

(2021, January 21). Walk The Talk On LGBT Stance, Muhyiddin Told. Free Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/nation/2021/01/21/walk-the-talk-on-lgbt-stance-muhyiddin-told/

Online Website

Malaysia LGBT Laws. (n.d.). Pride Legal. Retrieved from https://pridelegal.com/malaysia-lgbt-laws/Leong, M. (2018, June 6). How Malaysians Are Fighting Homophobia in Their Country. Culture Trip. Retrieved from https://theculturetrip.com/asia/malaysia/articles/how-malaysians-are-fighting-homophobia-in-their-country/Human Dignity Trust. (n.d.). Malaysia. Retrieved from https://www.humandignitytrust.org/country-profile/malaysia/

Reports from an Organisation

Human Rights Watch. (2021). Malaysia: Government Steps Up Attacks on LGBT People. Retrieved from https://www.hrw.org/news/2021/01/25/malaysia-government-steps-attacks-lgbt-people

Ghoshal, N. Human Rights Watch. (2019). “The Deceased Can’t Speak for Herself:” Violence Against LGBT People in Malaysia. Retrieved from https://www.hrw.org/news/2019/06/25/deceased-cant-speak-herself-violence-against-lgbt-people-malaysia

Press Release

Malaysian AIDS Council. (2018, December 22). Malaysian AIDS Council Denounces LGBT Conversion Therapy (Press Statement). Retrieved from https://www.mac.org.my/pdf/media-release/2018/22Dec2018-MALAYSIAN-AIDS-COUNCIL-DENOUNCES-LGBT-CONVERSION-THERAPY.pdf

Treatises

UN General Assembly. (1966). International Covenant on Civil and Political Rights. Treaties Series, 999, 171.

UN General Assembly. (1948). Universal Declaration of Human Rights (217 [III] A). Paris