LGBTQ Legal Guide: Does the Federal Constitution Defend Our Rights?
Our Federal Constitution guarantees the rights of everybody, no matter our race, religion, gender, or sexuality. Yet, we find many laws in our country that are anti-LGBTQ and that criminalise adults for consensual sex. These laws are unconstitutional for two reasons: the violation of basic human rights and arbitrary use of jurisdictional power. Read on to learn how we can challenge these unjust laws.
This article is part of Queer Lapis’s series of resources on the law and rights of everyone in Malaysia, especially LGBTQ people. In part 1, we listed and explained all the laws that criminalise us. This is part 2 where we look deeper into our Federal Constitution to show that these laws violate our human rights and are therefore ultra vires (unconstitutional) and must be repealed.
- Our Federal Constitution is the supreme law of the land, and any law that contravenes it is unconstitutional.
- All federal criminal laws and State Shariah criminal laws that criminalise consensual sex between adults and violate human rights are unconstitutional.
- Unjust laws can be challenged via strategic litigation including judicial review and petitions to our Federal Court.
Table of contents:
- Understanding the Federal Constitution
- What human rights are guaranteed in the Federal Constitution?
- What anti-LGBTQ laws exist in Malaysia?
- Do states have jurisdictional power to make “unnatural sex” laws?
- Have laws related to LGBTQ people been ruled unconstitutional before?
- How can these laws be removed?
Understanding the Federal Constitution
Our Federal Constitution is the supreme law of the land which outlines Malaysia’s legal frameworks enshrines our basic human rights. Thus, any law that contravenes these principles are ultra vires (unconstitutional) and must be struck down.
For example, Article 8 of our Federal Constitution guarantees our right to equality and non-discrimination, and several federal laws and state syariah laws are prejudicial and unduly discriminate against LGBTQ people. Therefore, these prejudicial and discriminatory laws are unconstitutional.
Our Federal Constitution also dictates the law-making powers of the Parliament and State Assembly. It lays out the different areas of laws that they can make under the Federal List and State List.
The state is not allowed to make laws that overlap with federal laws. However, State Syariah laws and Federal criminal laws that criminalise LGBTQ people overlap considerably. States are allowed to create laws and punishment for offences done by Muslim persons that violate the precepts (principles) of Islam. But at the same time it cannot create laws that are included in the Federal List, or that are already dealt with by the federal laws.
What human rights are guaranteed in the Federal Constitution?
Article 5 to 13 of the Federal Constitution guarantees our fundamental human rights and liberties. There are listed as follows:
- Article 5 – Right to life and personal liberties,
- Article 6 – Prohibition of slavery and forced labour,
- Article 7 – Protection against retrospective criminal laws and repeated trials,
- Article 8 – Equality and non-discrimination,
- Article 9 – Freedom of movement,
- Article 10 – Freedom of speech, assembly and association,
- Article 11 – Freedom of religion,
- Article 12 – Right to education and,
- Article 13 – Right to property
The Federal Constitution also states that any law that is inconsistent with the Federal Constitution shall be considered void to the extent of its inconsistency.
What anti-LGBTQ laws exist in Malaysia?
We go in-depth into all these laws in part 1 of our legal guide, but here’s a brief summary. In criminal law and syariah law, there are sections that criminalise consensual oral sex and anal between adults, between any gender, which means not only same-sex relations are criminalised. However, the law is heavily used to persecute LGBTQ people and it is used to victimise them through arrests, threats of arrests, blackmail, abuse by police. There are also laws that specifically target transgender people in syariah law.
Section 377A and B of the Penal Code criminalise “carnal intercourse against the order of nature”, which is defined as the insertion of a penis into a mouth or anus (oral and anal sex). Those found guilty are to be sentenced up to 20 years in prison and mandatorily whipped. Section 377D deals with “outrages on decency”, which is not clearly defined, and carries a maximum 2-year sentence. As the terms “order of nature” and “outrages of decency” are vague and ambiguous, these terms are widely open to abuse.
In state syariah laws, liwat (sex between men), musahaqah (sex between women), sexual intercourse against the order of nature (gender-neutral), and male posing as woman, and woman posing as man are all criminalised and some of them carry a punishment of RM5000 fine, or 3 years imprisonment or 6 lashes or any combination thereof, the maximum punishment allowed by the syariah court.
Many of these laws have unclear definitions, and that’s a problem
As we detailed in our previous article, many of these laws don’t define what liwat, musahaqah, or sexual intercourse against the order of nature means.
Because these laws are so broad, the authorities and courts are given too much power to interpret them. This results in LGBTQ people being disproportionately charged and criminalised under these bad laws. This reveals an even deeper issue — the bias against LGBTQ people.
If these laws are so vague, then why are mostly LGBTQ people being charged under them? The law is meant to be applied equally to all citizens. However, the lack of definition of these laws gives authorities arbitrary power to enforce their prejudices and homophobic attitudes.
See here for a comparison of syariah laws and their definitions according to state.
How do these laws violate our constitutional rights?
These laws violate our right to:
1. Equality and non-discrimination
When there are laws that penalise a certain population based on their identity, they are not seen as equals and they do not have access to fundamental rights and freedoms like other citizens. These laws create and reinforce the perception that LGBTQ persons are criminals or deviants, perpetuating prejudice, bias and negative perception of LGBTQ persons. As a result, LGBTQ persons experience widespread discrimination and are not treated as equals under the law and in society.
This bias and negative perception have an impact on our ability to seek legal representation and have a fair trial. They also deny us equal protection under the law against discrimination, equal opportunities, and more.
In many cases, where LGBTQ persons are arrested and convicted, they are unable to or face challenges in finding lawyers because of the bias faced by LGBTQ persons, the impact of being associated with LGBTQ persons, among other things. We have seen it many times in Malaysia—those who are associated with or speak positively about LGBTQ persons also face discrimination, exclusion and violence.
Violates: Article 8 (1) and (2) of the Federal Constitution, which ensures all persons are equal before the law and on the grounds of, among others, gender, race, religion.
2. Free from cruel, degrading treatment as well as harassment
The laws that criminalise LGBTQ persons impose various penalties, including fines, imprisonment and strokes of cane based on our sexual orientation. As a result of laws, many LGBTQ persons have been subjected to arbitrary arrest, extortion, humiliation, and degrading treatment during arrest and detention. Since May 2018, at least 6 persons have been caned under the state syariah laws for the attempt of consensual sexual acts.
These laws also have a chilling effect on our ability to exercise other rights or access services due to the fear they instill in us of possible arrest, blackmail, coercion, violence, among other things. This includes access to healthcare, employment, freedom of expression, association and assembly, right to information to name a few. They also make it easier for LGBTQ persons to be violated with impunity, especially by state actors. This inherently lead to increased corruption as well as a serious trust deficit between LGBTQ communities and the law enforcement agencies. This has a wider impact on our ability to seek justice or protection when LGBTQ persons are facing violence or harassment.
Violates: Article 8 (1) and (2) of the Federal Constitution.
3. Right to life with Dignity
‘Life’ means more than mere animal existence and includes such rights as livelihood and the quality of life and dignity. The discriminatory laws make it challenging or create barriers for LGBTQ people to openly express ourselves without fear, judgment, and stigma. When we face threats for expressing ourselves or are forced to hide our identity due to the risk of discrimination and violence, then our dignity is being stripped away. We are also unable to nurture ourselves, our identities and our need for connections and intimacy, which are all inherent parts of our sense of self.
Violates: Article 5 of the Federal Constitution, which protects our fundamental liberties, including dignity and privacy.
4. Right to privacy
Article 12 of the Universal Declaration of Human Rights, (1948) states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
The criminalisation of LGBTQ persons under various laws makes LGBTQ persons vulnerable to intrusion, surveillance, raids, intimidation, harassment, arbitrary arrest, moral policing, and violence by state and non-state actors when we express ourselves and our identities.
Not only that, when a person is under constant intrusion or threat of intrusion because of our sexual orientation or the types of relationships we form, we are unable to fully explore and nurture ourselves, develop intimate relationships and actualise this aspect of our lives. The lack of privacy has a terrible impact on our self-development and actualisation. It compromises our ability to exercise our autonomy, live with dignity, and nurture intimacy.
Violates: Article 10 (1) of the Federal Constitution, which protects the freedom of expression, including self-expression and actualization as well as privacy.
Do states have jurisdictional power to make “unnatural sex” laws?
No. The creation of civil and criminal law and the administration of justice falls under the Federal List in the Federal Constitution, and states have no jurisdictional power here. The Federal government is allowed to create laws for ‘offences in respect of any of the matters included in the Federal List or dealt with or by federal law’. This includes laws on internal security, nationality, trade, finance, education, health, among other things.
While states are allowed to create laws and punishment of offences by Muslim persons against the precepts of Islam (principles), it cannot create laws that are included in the Federal List or already dealt with by the federal law according to the Ninth Schedule of the Federal Constitution. For example, Perak cannot enact a state law on theft because it falls under federal jurisdiction.
Here are some of the state syariah laws related to sexual offences and equivalent existing ones in criminal law, “Sexual intercourse against the order of nature” being the most pertinent law in our discussion.
|State Syariah laws||Criminal law|
|Incest||Section 376 of the Penal Code|
|Prostitution||Section 372 of the Penal Code|
|Sexual intercourse against the order of nature||Section 377 of the Penal Code|
How much do these laws overlap?
Let us compare in detail how Section 377 of the Penal Code overlap with the various “Sexual intercourse against the order of nature” state syariah laws.
|Section 377||377A. Carnal intercourse against the order of nature |
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
Whoever voluntarily commits carnal intercourse
against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping.
Shariah provisions by state
|Sexual intercourse against the order of nature – Selangor||Any person who performs sexual intercourse against the order of nature with any man, woman or animal is guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.|
*Against the order of nature is not defined
|Sexual intercourse against the order of nature – Sabah, Melaka||Whoever has sexual intercourse against the order of nature with any man, woman or animal, shall be liable to takzir and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to caning not exceeding six strokes or to any combination of such punishment. |
*Against the order of nature is not defined
|Sexual intercourse against the order of nature – Negeri Sembilan||Any person who commits sexual intercourse against the order of nature with any man, woman or animal shall be guilty of an offence and shall be liable on conviction to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.|
*Against the order of nature is not defined
What are the similarities?
- Gender-neutral language. 377A and sexual intercourse against the order of nature in all 4 states use gender-neutral language – any person or whoever. Thus, these laws criminalise all people who have a penis and penetrate other persons regardless of sexual orientation and gender identity.
- Criminalises consensual sexual acts. 377A and the 4 state laws criminalise consensual sexual acts.
|377B||Syariah (Selangor, Melaka, Sabah & Negeri Sembilan)|
|Fine||–||RM5k (3 states)|
RM3k (1 state)
|Imprisonment||Max 20 years||Max 3 years (3 states)|
Max 2 years (1 state)
|Whipping/Caning||Mandatory – however the counts of whipping subject to court’s discretion||6 strokes (3 states) |
No caning (1 state)
|Mandatory/Discretionary||Both punishments are mandatory||Discretionary or combination of either two (2) above|
Of the four states impose caning and imprisonment for not more than 3 years. Caning under 377B is mandatory while it is discretionary in syariah law.
What are the differences?
1. State syariah laws include animals
Sexual intercourse against the order of nature includes persons and animals in the same provision. Meanwhile, the Penal Code deals sex between persons and sex with animals in separate sections as follows:-
377. Buggery with an animal
Whoever voluntarily has carnal intercourse with an animal shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine or to whipping.
2. Definition of “carnal/sexual intercourse against the order of nature”
Unnatural offences are defined under different sections under the Penal Code. Carnal intercourse is defined as ‘sexual connection with another person by the introduction of the penis into the anus or mouth of the other person’. The state syariah laws, however, do not define sexual acts against the order of nature in the interpretation section of the state laws.
As you can see from the above examples, some of the state Syariah criminal offences enactments overlap with the provisions under the Federal list, meaning they have gone beyond the state’s jurisdiction to enact these laws. As a result, these laws are unconstitutional, and can be challenged through a petition at the federal court.
Have anti-LGBTQ laws been ruled unconstitutional before?
Yes. In 2010, a group of transgender women filed a landmark judicial review to review Section 66 of the Negeri Sembilan State Syariah Criminal Enactment, which criminalises males who dress or pose as women or “cross-dressing”, and a person convicted can be sentenced to fine or imprisonment. As a result, the trans women argued that the law violates their fundamental liberties and subjected them to arbitrary arrest, violence, and discrimination and curtailed their freedom of expression and movement. Thus, the state law is inconsistent with some of the constitutional provisions in the Federal Constitution.
In 2014, the Court of Appeal declared that Section 66 is inconsistent with Article 5, 8, 9 and 10 of the Federal Constitution. As a result, the law was struck down and considered void with no legal effect.
Unfortunately, the decision was overturned by the Federal Court due to a technicality the following year in 2015. Although the law is still in place, there were significant changes on the rights of trans women.
One big shift was the change in the trends of the arrest of trans women and the laws that are used. At the very least, the cases of arrest of trans women under the ‘male person posing as a woman’ state law reduced significantly in Negeri Sembilan and all over Malaysia. The case also shed a light on the human rights violations and marginalisation of trans people, creating greater visibility and solidarity with trans women and the discrimination and violence that they face.
How can these laws be repealed?
Laws in Malaysia can be removed through two channels.
- Amendment in parliament.
- Court decision (strategic litigation)
In the former, a bill needs to be proposed by the government or a private member of parliament. The bill must be passed through the parliament, the Senate, and the Agong before it can be accepted.
In the latter, a judge can rule on whether a law is constitutional or unconstitutional, and if it is unconstitutional, it would be declared void. In situations where the argument is predominantly on whether the laws violate human rights, a judicial review needs to be filed to the High Court. If the argument is focused on whether a law made by the state was in excess of jurisdictional power i.e. only the parliament is allowed to make that law, a petition needs to be filed to the Federal Court.
All of the above are effective means of taking down unjust laws including ones that target LGBTQ people.
Read part 1 on all the anti-LGBTQ laws in Malaysia: