Trigger warning: This article mentions the persecution of LGBTQ+ people(s), violence, and conversion therapy.
In a historic moment on 25 February, Malaysia’s Federal Court ruled a state law, which allows punishment for “unnatural sex” (including consensual same-sex conduct), as unconstitutional. Though Section 377 of the Penal Code – a British colonial-era law that criminalizes same-sex relations with a maximum 20-year jail sentence – remains untouched, the ruling has been welcomed by those in the LGBTQ+ community who have long faced persecution from state religious enforcement agencies.
Three years ago, in November 2018, 11 men were arrested in the central Selangor state on suspicion of attempting sexual intercourse with one another. Five of the 11 men have since pleaded guilty, with each being sentenced to jail, receiving six strokes of the cane, and charged multiple fines. However, part of that group was a 35-year-old Muslim man, whose identity has been withheld at the request of his lawyers. In 2019, with the help of human rights lawyers and organizations in Malaysia, he decided to file a lawsuit against the state, exerting that Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995, which he was arrested under, was ultra vires, or unconstitutional.
The nine-member bench, chaired by Chief Justice Tengku Maimum Tuan Mat, unanimously agreed with the petitioner, announcing that primary power to enact criminal laws lies with Parliament. “As such, Section 28 is inconsistent and void,” expressed Tengku Maimum in a virtual proceeding. Malaysia, composed of 14 states (including Sabah and Sarawak), abides by a dual-track legal system: Islamic criminal and family laws (syariah) applicable to Muslims and civil laws. The Chief Justice referred to the preclusion clause in Item 1 of the state list which prevents state legislature from making laws that fall within Parliament’s jurisdiction, even if there is no such federal law yet.
Legal adviser Salim Soib Hamid Tengku Maimun, representing the Selangor state government, and counsel Halimatunsa’diah Abu Ahamd, acting for the Selangor Islamic Religious Council (Mais) as the second respondent, both argued that Section 28 is worded differently from Section 377 of the Penal Code. They asserted that this enabled Section 28 to co-exist with federal laws, allowing it to be constitutionally valid. Additionally, they submitted that the state law was valid for “unnatural sex” was against the precepts of the religion of Islam. Tengku Maimum voiced that this case did not dispute that liwat (sodomy), with which the Muslim man was charged, was against the precepts of Islam. Yet, she noted that an argument suggesting that Section 28 is valid merely because it is an offence against the precepts of Islam was insufficient.
Agreeing with the court’s ruling, retired Federal Court judge Gopal Sri Ram noted, “To make sure the balance is kept between federal and state powers, it is the court which is the guardian of the constitution.” With that being said, lawyer Muhammad Rafique Rashid Ali, who is based in Selangor, stated that “Similarly worded enactments in other states will suffer the same fate as that in Selangor.” This has the Malaysia Islamic Party (PAS), an Islamist political party based primarily in Peninsular Malaysia’s more conservative north and east coast, concerned. PAS Secretary-General Takiyuddin Hassan said that while the Federal Court ruling should be respected, he worries that the judgment was swayed by public pressure, leading to “future implications that do not benefit the country.”
More likely, however, is that the ruling places PAS’s political stronghold on shaky grounds. While Takiyuddin resolved to continue its efforts in harmonizing civil law with Islamic law, he said “PAS is convinced, based on the recognition of syariah law even by the country’s British courts in the pre-independence era, the principles of such a law will be able to create a new face and dynamic to the national legal system.” Minister in the Prime Minister’s Department (Religious Affairs) Datuk Zulkifli Mohamad Al-Bakri, took this one step further. Determined to solidify the role of syariah courts in the country, he said, “The committee [Civil Law Technical Committee under the Islamic Development Department] will hold a consultation session with states and stakeholders in an effort to strengthen and streamline syariah laws in Malaysia.”
It was not until 1976 that a constitutional amendment was passed, replacing every iteration of “Muslim law” with “Islamic law”, changing “Muslim Courts” to “Syariah Courts”. According to Queer Lapis, an online resource by and for the LGBTQ+ community in Malaysia, fatwas (fallible opinions of religious scholars) were transformed to legally binding instruments of the state. The process of institutionalising the administration of Islam in the country culminated in 1985 as syariah criminal offences were introduced in Kelantan. Other states soon followed in suit. Initially, zina (sex between unwed couples) and khalwat (close proximity between unwed couples) were criminalised. Eventually though, syariah criminal offences were consolidated to include liwat (sexual relations involving anal penetration) and musahaqah (sexual relations between women) as offences.
The 25 February ruling is significant, in part because there have been concerted efforts in the past few years for the expansion of syariah courts and a sharp rise in sentencing jurisdictions that would see ten times the current jail sentence, 20-times in fines, and 94 extra strokes of the cane. PAS was the main proponent of this, introducing a Private Member’s Bill titled RUU355 in parliament to amend the Syariah Courts Act 1965 (Act 355). On top of this, former Minister of Religious Affairs Mujahid Yusof Rawa, suggested harmful state-funded programmes which aimed to “reform, fix them [those who identify as LGBTQ+], change their attitude and their wayward lifestyle.”
In July last year, JAKIM’s Director-General was outright seen promoting conversion therapy practices and a 5-year action plan to “curb LGBT behaviour” (Queer Lapis) detrimental to the LGBTQ+ community. He asserted that JAKIM’s “gender confusion education, treatment, and rehabilitation programme” has reached over 1,700 LGBTQ+ persons since it began in 2011. These actions have seen a rise in unemployment, homelessness, arrests, canings, and deaths of LGBTQ+ people in Malaysia over the past decade, and especially during the pandemic where these individuals have been unjustly targeted. Most recently, Selangor’s religious department announced it was deploying 122 officers to seek our Nur Sajat, a transwoman who was charged with “insulting Islam” (Human Rights Watch) after attending a religious event dressed in clothing typically associated with women. Selangor’s syariah laws also criminalize non-normative gender expression.
Clearly, there is still much to be done before the LGBTQ+ community can feel safe to openly be themselves within Malaysia. However, the Federal Court’s recent ruling has set a new precedent for LGBTQ+ rights in the country, whereby cases filed against state criminal courts have been dismissed or overturned in the past. A group of transwomen in the state of Negeri Sembilan, for instance, filed a judicial review of Section 66 of the Negeri Sembilan Syariah Criminal Offences Enactment after a series of arbitrary arrests and raids targeting transwomen (Queer Lapis). Claiming Section 66 contravened with rights guaranteed in the constitution – Article 5 (personal liabilities), Article 8 (equality and non-discrimination), and Article 10 (freedom of speech) – the Court of Appeals actually declared Section 66 unconstitutional. This landmark decision, however, was disappointingly overturned a year later on a technicality.
Advocacy and human rights groups urge that the same not occur in regards to the recent ruling, hoping that the vague laws that criminalize consensual same-sex relations and non-normative gender expression will be repealed in Selangor, with other states following suit. Alongside this, a grassroots campaign advocating for the transgender community in Malaysia, JusticeForSisters, has called for the expedition of measures to discontinue all policies and activities with the aim to “correct” or “rehabilitate” LBTI women, the adoption of anti-bullying policies and counselling services, as well as human rights and gender sensitization training for police officers and government staff. These can extend to the entire LGBTQ+ community, although the persecution of LBTI women is particularly harmful as it often goes unreported.
Years of efforts by the LGBTQ+ community have paved the way for February’s historic ruling. Founder of the LGBTQ+ rights group Pelangi Campaign, Numan Afifi told the Thomson Reuters Foundation “It [the ruling] marks a monumental progress for LGBTI rights in Malaysia. We have worked hard for so many years to live in dignity without fear of prosecution […] Of course Section 377 is still there–it’s not the end but this is a beginning.” Activist Chong Yee Shan echoed these sentiments, citing, “With today’s decision, we are reclaiming our rights.”
These Malaysian organizations aim to support and advocate for the LGBTQ+ community:
1. Community Health Care Clinic (queer-affirming mental health counselling)
Operation hours: Varies
Contact: +60 34051 3611
Whatsapp: +60 11 2143 4572
2. SEED (supports marginalized communities, especially the transgender community)
Operation hours: Varies
Contact: +60 326970655
3. JusticeForSisters (grassroots campaign primarily for the transgender community)
4. Pelangi Campaign (LGBTQ+ civil society organisation)
5. Queer Lapis (online resource)
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