Press statement: Enabling access to justice for LGBTIQ persons
27 May 2020
By The LGBTIQ++ Network in Malaysia
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We fully welcome the leave granted by the Federal Court in connection to a petition to review Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 on grounds of legislative incompetency. The judgement was delivered by Justice Abang Iskandar on 14 May 2020.
[FAQ] Federal Court allows challenge to Selangor’s Syariah law against ‘unnatural sex’
Beyond the scope of the state of Selangor’s authority
The petition argues that the enactment of Section 28 is beyond the Selangor state’s powers or ultra vires as there are limitations to laws a State government can enact. Only the Federal government is allowed to create criminal laws as listed in Item 4 of the Federal List under the Federal Constitution.
Although states do have the power to enact Muslim laws, they cannot when a law already exists — as in, Item 1 of the State List which allows for ‘creation and punishment of offences by persons professing the religion of Islam against precepts of that religion ‘except in regard to matters included in the Federal List’. Section 28 of the Syariah Criminal Offences (Selangor) overlaps with Section 377 and 377A of the Penal Code, a Federal law. It is inconsistent with the Federal Constitution.
A petition against inhumanity and injustice, not religion
Spokespersons for the LGBTIQ+ Network, Thilaga Sulathireh, Numan Afifi, and Chong Yee Shan, stated, ‘Based on past experience, some may claim this is petition is against religion, but this is fundamentally a petition against injustice and inhumanity’, adding ‘We hope to discuss the erosion of boundaries between federal and state, privacy and community and reasons for the increasingly hysterical discrimination against LGBT persons.’
Background of case
The petition was filed in connection with a case of prosecution for “attempt of sexual intercourse against the order of nature” under Section 28 (read with Section 52) in November 2019. The men were arrested in a raid at a private residence in 2018 by the Islamic Religious Department of Selangor (JAIS) and the National Anti-Drugs Agency.
Enabling justice for LGBTIQ individuals
The Federal Court’s decision is particularly welcome given the ongoing national trend of prosecution against LGBTIQ individuals on the basis of attempted sexual intercourse “against the order of nature” which escalated in 2018 when two women were sentenced to fines and 6 strokes of the cane in an open court for the attempt of musahaqah (sexual relations between women). Section 28 of the Syariah Criminal Offences (Selangor) is among the many state and federal laws that criminalise persons based on consensual sex and actual or perceived sexual orientation.
By granting leave for the petition to be heard on its merits, the Federal Court opens up space to scrutinize the law and its wide-ranging adverse impact on LGBTIQ persons. This case would provide a welcome opportunity for the country to address how anti-LGBTIQ laws perpetuate discrimination, criminalisation and state-sponsored violence against LGBTIQ persons, while preventing them their access to justice, services, and opportunities to live a life with dignity. The decision is also significant for all persons in pursuit of justice regardless of sexual orientation and gender identity. By granting leave, the Court upholds the spirit of Article 8 of the Federal Constitution, encompassing equal protection principles and due process principles for all.
The overly broad and vague scope of Section 28 currently grants state authorities a disproportionate amount of arbitrary power to enforce their pre-existing prejudices and homophobic sentiments which prevents access to justice. During the raid, for example, the men were subjected to humiliating and degrading treatment by JAIS. They were deprived of legal counsel, as well as denied timely and adequate information on their right to legal representation. Within the context of the accelerated collision between state bodies and conservative religious forces over the past decades, it is clear this state law is being used by authorities to disproportionately criminalise marginalised and persecuted communities based on sexual orientation and gender identity.
Section 28, as with other state laws that are inherently discriminatory and violate multiple human rights, particularly the right to live with dignity — are in violation of the Federal Constitution—namely, Article 8 on equality before the law, Article 5 on living with dignity, privacy and due process, and Article 10 on freedom of expression.
Section 28 also violates the Universal Declaration of Human Rights (UDHR) of Article 1, 2 and 7 on the rights to equality, non-discrimination and dignity, and Article 5 on the right to be free from torture and cruel punishment.
The impact of these laws and their application by the courts cannot be detached from their cumulative consequences on the lived realities of LGBTIQ persons. As it is, we consistently witness biased and sensational reporting by media outlets portraying the LGBTIQ community as deviant and sinful, state-sponsored anti-LGBTIQ programmes, rampant discriminatory hiring practices, and family violence against LGBTIQ individuals. Where the LGBTIQ community have successfully fought to visibilise their struggles and made their voices heard, they have faced intimidation, harassment and death from the authorities and the public at large.
The courts play a crucial role in upholding and safeguarding the rights of all persons. As such, the Federal Court’s decision provides much needed calm and reflection with regard to the prevalent hostile environment for LGBTIQ individuals, exacerbating discrimination and furthering harm to their safety, wellbeing and access to livelihoods.