Conviction for Attempts of Sex Acts Points to Increasing Hostility Towards LGBTQ Persons In Malaysia
Kuala Lumpur, 8 November 2019 — We strongly condemn the sentencing of five men on 7 November 2019 by the Selangor Syariah High Court on the charge of attempt of sexual intercourse against the order of nature (Section 52 read together with Section 28 of the Selangor Syariah Criminal offences Enactment 1995) following a raid and arbitrary arrests made at a private event held last year (2018).
Four individuals were sentenced to a RM4,800 fine, 6 months imprisonment and 6 strokes of the cane, while another individual was sentenced to a RM4,900 fine, 7 months imprisonment and 6 strokes of the cane.
The alarming trend of prosecution of persons on the basis of attempted sexual intercourse “against the order of nature”, liwat or musahaqah, and the heavy-handed punishment as a method to teach others as a cautionary tale or as deterrence is a cause of concern. We remind the court that sexual conduct between consenting adults is not a crime and lesbian, gay, bisexual, and transgender (LGBT) people are not criminals. Private and consensual sexual acts between adults must not be anyone’s concern. We also condemn the act of ‘tajassus’ or spying by the religious authorities for the purpose to persecute the five men.
In court, the judge had made many prejudicial statements unrelated to the facts in issue causing victimisation of the five men. The judge’s decision should not be based on impact on society, as these impacts are entirely assumed, imagined and exaggerated. However, society’s discriminatory laws have a severe impact on LGBT people’s access to justice. And the court’s excessive punitive measures have an impact on these men’s livelihood, job security, and responsibilities to their families, among other things. The judge was insistent on imprisonment in order to rehabilitate them and to isolate them from “others and their environment” (read: other LGBTQ people) as a preventative measure. The judge also said that as people like them are difficult to control, thus they must be segregated. These statements suggest extremely prejudicial sentiments in the judge, which resulted in unjust judgments for the men.
The lack of understanding of LGBTQ persons and narrow views of sexual orientation, gender identity, and gender expression in public education leads to injustice and victimisation of LGBTQ persons, as evidenced in this case. Court decisions like the one yesterday deepen the perception that LGBT people are criminals, which then further sanction other ways in which this vulnerable, marginalised community experience harm — not only by the state but also at the workplace, by their communities as well as their families.
These state laws are inherently discriminatory and violate multiple human rights, particularly the right to live with dignity. These state laws are also in violation of the rights enshrined in the Federal Constitution, namely Article 8 on equality before the law, Article 5 on living with dignity and fair and impartial trial, and Article 9 on freedom of movement.
Furthermore, these laws further violate the Universal Declaration of Human Rights (UDHR) of Article 1, 2 and 7 on the right to equality, non discrimination and dignity, Article 5 to be free from torture and cruel punishment, Article 10 on equality to a fair and impartial trial, Article 13 on freedom of movement, and Article 21 and 23 on right to employment.
Given the adverse and long term impact on the lives of people, these laws must be repealed immediately. These laws not only empower moral policing, raids and arbitrary arrest, but it also allows harmful and violent practices like caning to continue. We urge medical practitioners to strongly condemn the unethical use of doctors to sanction caning and facilitate harm towards people.
We also urge the media to exercise the highest level of professionalism in reporting this case. As it is, we have seen biased and sensational reporting by certain publications which will further harm the safety, wellbeing and livelihood of the individuals involved and by extension, other LGBT persons. The language and messaging used in these reports foster dangerous discussions in the public sphere, arousing mob mentality and death threats. As we have seen before, biased and sensationalist reporting increases homophobia and transphobia among the public, directly affecting the wellbeing and safety of people deemed to be LGBT.
The state has a duty to protect and promote the human rights and dignity of all people, including people of diverse sexual orientation, gender identity and gender expression, and end all forms discrimination, marginalisation and victimisation. LGBTQ and people of diverse sexual orientation, gender identity and gender expression have suffered enough discrimination and violence from the state and non-state actors alike. It is time for the state to end all discrimination and violence against LGBTQ persons.
- Justice for Sisters
- Pelangi Campaign
- Seksualiti Merdeka
- Queer Lapis
- People Like Us Hang Out (PLUHO)
- Transmen of Malaysia
- All Women’s Action Society (AWAM)
- PLUSOS (People Like Us Support Ourselves)
- KL Queer Women Discussion Group
- Cempaka Collective
- L-INC Foundation
- KLSCAH YOUTH
- The KLSCAH Women Section
- Persatuan Sahabat Wanita Selangor
- KRYSS Network
- Suara Rakyat Malaysia (SUARAM)
- RRAAM (Reproductive Rights Advocacy Alliance)
- Gerakan Pembebasan Akademik (GPA)
- Queer Temple
- Gerakan Mahasiswa Maju UPM (GMMUPM))
- North South Initiative (NSI)
- BIKAR ALAM
- Good Samaritan Kuala Lumpur (GSKL)
- Parti Sosialis Malaysia (PSM)