The Veiled Rainbow: Peeking into LGBTQIA+ Rights in Malaysia
This article discusses the current position of Malaysian courts regarding LGBTQIA+ rights, the constitutionality of anti-LGBTQIA+ laws and the protections to be accorded to the LGBTQIA+ community.
SUARA MANDIRI Issue #5
“Somewhere over the rainbow, bluebirds fly, and the dream that you dare to, oh why, oh why can’t I?”
The beautiful verse is from “Over the Rainbow'' crooned by Judy Garland as Dorothy in The Wizard of Oz, a young girl yearning for more than what life has to offer, accepting people who are different as she befriends the Scarecrow, the Tin Man, and the Cowardly Lion. The LGBTQIA+ community resonated with the pipe dreams the song lulled, of a better life and end of oppression against their very beings. As a matter of fact, the song is purported to have inspired the rainbow flag, universally recognised as a symbol for LGBTQIA+ pride.[1] However, a woeful reality depicts otherwise, human rights and protection for the LGBTQIA+ community have yet to be universally recognised, particularly in Malaysia.
Anti-LGBTQIA+ Laws: Constitutional or a Breed of Arbitrariness?
Malaysia has been making headlines time after time for violating the rights of the LGBTQIA+ community. Muslim members are especially affected, as arguments of State legislated Islamic laws superseding the Federal Constitution continue to resurface, discriminating against the minorities. In discussing the current position of Malaysian courts regarding LGBTQIA+ rights, this article will delve into key cases on both the constitutionality of anti-LGBTQIA+ laws as well as the protections these minorities should be accorded in Malaysia. This article will also explore the constitutionality of the law from the perspective of human rights law and precepts of democracy.
In 2014, the Putrajaya Court of Appeal in the case of Muhammad Juzaili Bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors[2], where three transwomen were arrested, and convicted several times under Section 66 of the Negeri Sembilan Syariah Criminal Enactment 1992[3] for cross-dressing, remarked on the contravention of State laws against Federal laws. Here, Malaysia witnessed an unprecedented ruling recognising the fundamental rights of the LGBTQIA+ community. The court stated that Section 66 in depriving the appellants of their right to live with dignity as well as preventing them from dressing in a way that is natural to them in public, is inconsistent with Articles 5(1), 8(1) and (2), 9(2), and 10(1) of the Federal Constitution and thus, unconstitutional.[4]
The court adopted the view that the subsistence of Section 66 would subject trans-Malaysians to commit a crime the very moment they leave their homes, causing them to be susceptible to undue arrest and prosecution. This brought to light the oppressive and degrading nature of state laws violating the fundamental rights of Malaysians conferred by the Federal Constitution. However, the decision was later overturned by the Federal Court on the basis that there was no consideration towards the substance of the constitutional challenge and technicality in citing improper procedures used in challenging Islamic law.[5] Regardless of the overturn, a shred of hope for the LGBTQIA+ community in attaining their rights in Malaysia remained.
Earlier this year, the Federal Court of Malaysia had come to an important decision, paving way for the protection of LGBTQIA+ rights in Malaysia by ruling that Section 28 of Selangor’s Syariah Criminal Offences Enactment 1995 is inconsistent with the Federal Constitution.[6] The provision criminalises “sexual intercourse against the order of nature with any man, woman or animal,” carrying a maximum penalty of an RM5,000 fine, three years’ jail, and six strokes of the cane. The Islamic ban of the sex ‘against the order of nature’ provision was deemed void, unconstitutional and cannot be implemented any further.
The particular provision has seen the arrests of many members of the LGBTQIA+ community and is often used to incarcerate these marginalised communities. The ruling was decided unanimously by the nine judges presiding in the Federal Court, simultaneously awarding the LGBTQIA+ community protection of their rights under the Federal Constitution. The ruling restored trust and confidence in the judiciary as the protector of the people’s rights in Malaysia regardless of race, religion, gender, or sexuality. It also cleared the discrepancies between the jurisdiction of the Syariah and Civil Courts and asserted that there shall be no overlapping of jurisdiction. In tandem, the Federal Constitution is reaffirmed as the supreme law of the land and laws in contravention with any of its provisions are invalid, serving as a reminder to state legislative assemblies and Parliament to legislate laws aligned with the Federal Constitution.
Prior to the Federal Court decision, the LGBTQIA+ community in Malaysia have long suffered the impacts of anti-LGBTQIA+ laws repressing their freedom of expression and interfering with their right to self-determination. The members of the community had continuously faced unjustifiable restriction of fundamental freedoms and were vulnerable to atrocities in their daily lives. The members of the community were deprived of their rights to equality per Article 8 of the Federal Constitution, as it is infringed by a number of overlapping Federal and state laws. This affects their quality of life and undermines their position in the community.[7] Their rights to life were downtrodden with arbitrary laws governed by an unrestrained authority, fuelled by hate against the LGBTQIA+ community.
Imposition of Criminal Penalties Towards the LGBTQIA+
Although many nations have now decriminalised LGBTQIA+ groups, repealed and revoked laws discriminating against LGBTQIA+’s, Malaysia continues to stand firm and unperturbed.
One particular nightmare the LGBTQIA+ community in Malaysia have had for decades now is Section 377A of the Penal Code. This provision basically states that any person who has sexual relations with another person by the introduction of the penis into the anus or mouth of the other person commits carnal intercourse against the order of nature. As provided in Section 377B of the Penal Code, one voluntarily committing carnal intercourse against the order of nature would be harshly punished with imprisonment up to twenty years, and whipping.
The Malaysian Penal Code was primarily modelled based on the Indian Penal Code and both started off containing similar Section 377 provisions, but India walked a step ahead when the Supreme Court in 2018 repealed the antiquated law. The petitioners in the latter case averred that Section 377 legitimises the stigma associated with sexual orientation. After a long battle, the Indian Supreme Court concurred that the law suppressed the rights of Indian nationals as citizens and revoked Section 377 of the Indian Penal Code.[8] It is intriguing to see India, upon which our Penal Code sought inspiration, deciding to outlaw the preposterous laws, but Malaysia has not followed suit. Another provision of the Penal Code the LGBTQIA+ community have been criminalised with is Section 377D, which provides that any person who, in public or private, commits any act of gross indecency with another person, shall be punished with imprisonment up to two years. Here, ‘gross indecency’ is broad and leaves room for much speculation.
From a slightly different lens, the LGBTQIA+ community, harbouring dreams of starting their own family, face imminent problems. Surrogacy is not legally recognised for all couples in Malaysia. The only option available is adoption. However, adoption is allowed only for married couples under the Law Reform (Marriage and Divorce) Act 1976. It should also be noted that Section 69 (D) of the Act states that a marriage taking place after the appointment date would be void if the parties are not respectively male and female, hence same-sex marriages are not registrable. This creates a domino effect for the LGBTQIA+ group, rendering them unable to do all the things normal couples would do, including having children.
In a similar vein, the Syariah Courts (Criminal Jurisdiction) Act 1965, enacted to safeguard Malaysia’s essential secular character, has prevented the LGBTQIA+ community from living openly. Initially, Syariah courts could impose maximum sentences of one year in prison and a fine of up to RM 1,000, but the Act was amended in 1984 to increase the maximum sentence to three years in prison, fines up to RM 5,000 and whipping up to six strokes. Although this draconian law is unbelievably cruel on paper, it did not garner much limelight as the courts had never quite imposed whipping sentences, a form of torture under international law, for same-sex conduct. However, this took a turn for the worse in September 2018, when Terengganu carried out a caning sentence against two women accused of attempted same-sex relations and when the Selangor Syariah court sentenced five men to fines, imprisonment and caning in November 2019.[9]
In attempts of safeguarding the interests of citizens of different walks of life, Clause 7 of the National Harmony and Reconciliation Bill 2014 prohibits gender discrimination, including discrimination on the basis of pregnancy, sexual orientation and identity, the denial of access to opportunities, and the systemic inequality of access to opportunities by gender as a result of the sexual division of labour. While the actual inclusion of the clause in the initial draft bill was a positive step, it drew criticisms for protecting the LGBTQIA+ community and was labelled by some as anti-Islam. The then-deputy Chairman of the NUCC law and policy committee, Lim Chee Wee, said that as a result of the pressure, the clause was likely to be removed. The bill has now been shelved since National Unity Minister Datuk Halimah Mohamed Sadique opined that the existing laws are adequate to tackle issues linked to religion and race.[10]
In terms of international human rights treaties, Malaysia has ratified the Convention on the Rights of the Child (CRC), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities (CRPD), albeit with reservations. In 1995, Malaysia ratified the CRC, of which Article 3.1 provides that all forms of discrimination against children should be eliminated and, in all actions, concerning children, the best interests of the child should be the primary consideration. In addition, the Committee on the Rights of the Child, the UN Committee on the Rights of the Child. General comment No. 15 (2013) has stated that the Member States have a duty to ensure that children’s health is not undermined because of discrimination, and specifically stated that this includes discrimination based on gender identity.
Despite the ratification, in Malaysia, gender variant children and trans adolescents have reported violence from their own families, including being handcuffed and locked in a room[11] and being sent to camps for ‘effeminate’ boys. In April 2011, it was reported that 66 schoolboys with ‘effeminate tendencies’ were sent to a four-day camp in Besut to ‘curb’ their behaviour. One of the mainstream daily newspapers, the New Straits Times, maintained a consistent use of the word ‘sissies’ in reports about this camp.[12] In schools, trans children can be subjected to punishments such as whipping, suspension, or expulsion because of their gender expression. All of these practices are against the principles of protection of the rights of the child as enshrined in the CRC.[13] In short, Malaysia’s Child Act 2001 does not reflect these protections and does not eventually provide any protection to the LGBTQIA+ community as it should.[14]
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Committee had strongly recommended the government discontinue all activities and policies seeking to rehabilitate this marginalised community as they are not in line with international human rights standards.[15] However, the issue of sexual orientation and gender identity continues to be politicised by the government, against the spirits of CEDAW and CRC.
With the multitude of oppressive laws, a hostile environment persists for the LGBTQIA+ community. They are humans too, and as humans, they should be given the basic right to life as every other human being. It is hoped that the Malaysian government looks into repealing or reforming some of the above-mentioned laws to ensure its conformity to international human rights instruments and basic human principles in general.
The Grass is Greener on the Other Side
Asian countries are known to perpetuate conservative views towards the LGBTQIA+ community. Although Malaysia remains affixed on the conservative fringes with anti-LGBTQIA+ laws, Southeast Asian countries such as Thailand and the Philippines have progressively been painting their rainbow flags a brighter colour.
Thailand has bestowed the reputation of an Asian country tolerant towards LGBTQIA+ individuals following their decriminalisation of private and consensual non-commercial sodomy among adults in 1956. Another victory was marked in 2007 when constitutional protection and inclusion of the LGBTQIA+ was granted after Thailand’s Constitution Drafting Assembly (CDA) issued the ‘Intentions of the Constitution of the Kingdom of Thailand’ which stated, “Differences in phet [sex], in addition to meaning the differences between men and women, this also denotes the differences between individuals in sexual identity or gender or sexual diversity, which may be different from the phet in which the person was born. Consequently, the above are not specifically provided for in section 30 because the word phet already denotes the above meanings and the individuals within the above categories should not be discriminated against''.[16]
In fact, Thailand has ratified prime resolutions recommended by the United Nations on human rights violations based on sexual orientation and gender identity.[17] Preaching to the choir, the Philippines has also been waving the rainbow flag up high. In 2005, the Supreme Court of the Philippines had negated the Thai government’s regulations on sexual relations of consenting adults and made a commendable statement that the regulations had violated the right to privacy and personal dignity of individuals.[18] Further, making up for the absence of national legislation on discrimination against the LGBTQIA+ community, some ordinances in local government units in the Philippines granted protection for the LGBTQIA+ from discrimination through their anti-discrimination ordinances.[19]
Sadly, in Malaysia, there is a lack of legislation expressly prohibiting discrimination against the LGBTQIA+ community as seen in Thailand and the Philippines. In an interview with HAKAM Youth, Angela M. Kuga Thas from KRYSS Network expressed that the LGBTQIA+ community face challenges in enjoying ‘equality before the law’ as protected under our Federal Constitution. More often than not, the LGBTQIA+ community are unable to report to the police about the human rights violations they face including serious physical and sexual violence without risking being interrogated themselves. Angela and other human rights advocates in Malaysia have repeatedly called for the repeal of all policies and laws encouraging persecution of the LGBTQIA+ community as well as political parties to support LGBTQIA+ persons as political candidates and/or appointees.
Conclusion
Although the recent Federal Court’s decision on decriminalising sex against the order of nature is a stepping stone towards eradicating anti-LGBTQIA+ laws and discrimination against the community, the Malaysian LGBTQIA+ community is still a long way from being comfortable in their own skin and safe in their own homes. Efforts made by LGBTQIA+ groups to promote inclusion, decriminalisation, and protection of the community must not be halted by selfish dictates of how a person should act and feel.
Despite our different belief systems, no one should be oppressed and discriminated against. The LGBTQIA+ community are humans too. There must be no place for discrimination and criminalisation based on homophobia and transphobia. The LGBTQIA+ community deserves to be treated with respect and love, not shunned and harassed. They are constantly limited by gender stereotypes and discriminatory social constraints, exposing them to heightened physical and psychological harm. These blatant prejudices must come to an end.
One must not only fervently hope, but proactively work towards achieving an equal and inclusive society. With all hands on deck, the collective dreams harboured by the LGBTQIA+ community in Malaysia would come true.
References:
[1] Brooke Nelson, ‘How the Rainbow Became the Symbol for LGBTQ+ Pride’ Reader’s Digest <https://www.rd.com/article/how-the-rainbow-became-associated-with-gay-rights/> accessed on 7th June 2021.
[2]Muhammad Juzaili Bin Mohd Khamis & Ors v. State Government of Negeri Sembilan & Ors [2015] 3 MLJ 513.
[3] Syariah Criminal (Negeri Sembilan) Enactment 1992.
[4] Asia Pacific Transgender Network, SEED Malaysia. 2017. Legal Gender Recognition in Malaysia: A Legal & Policy Review in the Context of Human Rights. (Bangkok: APTN, 2017).
[5] Suganthi Suparmaniam, ‘Transgender case: Federal Court overturns Court of Appeal's decision’, (Astro Awani, 2015). <https://www.astroawani.com/berita-malaysia/transgender-case-federal-court-overturns-court-appeals-decision-75716> accessed on 7th June 2021.
[6] LGBTQ+ Network in Malaysia, “The Federal Court decision on Selangor’s Section 28 upholds constitutional protection for all”, (Queer Lapis, 2021). <https://www.queerlapis.com/the-federal-court-decision-on-selangors-section-28-upholds-constitutional-protection-for-all/> accessed on 7th June 2021.
[7] 'LGBT community deserves equal protection under the law' New Straits Times (Kuala Lumpur, 21 January 2021) <https://www.nst.com.my/news/nation/2021/01/659492/lgbt-community-deserves-equal-protection-under-law> accessed on 6th June 2021.
[8] 'Section 377 Verdict: Section 377: Here's Everything You Need to Know' (The Economic Times, 2018) <https://economictimes.indiatimes.com/news/politics-and-nation/sc-delivers-historic-verdict-heres-everything-you-need-to-know-about-section-377/articleshow/65698429.cms?from=mdr> accessed 6 June 2021.
[9] 'Malaysia: Government Steps Up Attacks on LGBT People' (Human Rights Watch, 2021) <https://www.hrw.org/news/2021/01/25/malaysia-government-steps-attacks-lgbt-people> accessed 6 June 2021.
[10] Sharifah Mahsinah Abdullah, 'Minister: Existing Laws in Malaysia Adequate, National Harmony Commission Bill Will Not Be Continued | Malay Mail' (Malaymail.com, 2021). <https://www.malaymail.com/news/malaysia/2020/08/05/minister-existing-laws-in-malaysia-adequate-national-harmony-commission-bil/1891354> accessed 6 June 2021.
[11] KRYSS, ‘On the record: violence against lesbians, bisexual women and transgender people in Malaysia. In: Violence: through the lens of lesbians, bisexual women, and trans people in Asia’ New York: International Gay and Lesbian Human Rights Commission at 29. <https://www.outrightinternational.org/sites/default/files/MalaysiaCC_0.pdf>
[12] Sylvia Tan, 'Boot Camp For 66 ‘Effeminate’ Schoolboys in Malaysia Draws Outrage' (Fridae.asia, 2011). <https://www.fridae.asia/gay-news/2011/04/20/10811.boot-camp-for-66-effeminate-schoolboys-in-malaysia-draws-outrage> accessed 6 June 2021.
[13] Asia Pacific Transgender Network, SEED Malaysia. 2017. Legal Gender Recognition in Malaysia: A Legal & Policy Review in the Context of Human Rights. (Bangkok: APTN, 2017).
[14] Women’s Aid Organisation (WAO), ‘CEDAW & Malaysia - Malaysian Non-governmental Organisations’ Alternative Report Assessing the Government’s Progress in Implementing the United Nations Convention on the Elimination of All Forms of Discrimination against Women’ (2012) <https://wao.org.my/wp-content/uploads/2018/08/Malaysian-NGO-CEDAW-Alternative-Report-2012.pdf>
[15] “Malaysia Must Recognize and Stop Hostilities Toward LGBT People”, (Outright International, 2013). <https://outrightinternational.org/print/content/malaysia-must-recognize-and-stop-hostilities-toward-lgbt-people> accessed on 7th June 2021.
[16] Douglas Sanders, ‘The Rainbow Lobby, In Queer Bangkok after the Millennium: Beyond Twentieth-Century Paradigms.’ (2011). Hong Kong University Press <https://www.refworld.org/pdfid/54ed82784.pdf> accessed on 7th June 2021.
[17] UNDP, USAID, ‘Being LGBT in Asia: Thailand Country Report.’ (2014). <https://www.refworld.org/pdfid/54ed82784.pdf> accessed on 7th June 2021.
[18] City of Manila vs. Perfectio Laguio and Malate Tourist-Development Corporation (G.R. No. 118127).
[19] UNDP, USAID, ‘Being LGBT in Asia: Thailand Country Report.’ (2014). <https://www.refworld.org/pdfid/54ed82784.pdf> accessed on 7th June 2021.