G25 Malaysia joins the Human Rights Commission of Malaysia (Suhakam) and other civil society groups in opposing the proposal by the deputy minister (religious affairs) in the Prime Minister’s Department to introduce an amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) (Act 355) in Parliament for the purpose of imposing heavier sentences on the LGBT community if they engage in sinful behaviour.
According to the deputy minister, cross dressing is also ‘sinful’ and must be punished with heavier sentences so as to act as a deterrent to others.
The deputy minister was also reported to have said: “All state religious agencies and enforcers have been instructed to take action against those (LGBT) who do not behave accordingly.”
In this regard, with due respect to the deputy minister, under the Federal Constitution, except for the federal territories, matters pertaining to the administration of Islam are a state matter and within the jurisdiction of the respective states. Therefore, it was a contravention of the Federal Constitution for the federal deputy minister to have issued such an instruction.
As Muslims, we do not condone the commission of any sin by any Muslim. Nevertheless, we would like to point out here that with regard to transgender and cross-dressing, in the Court of Appeal case of Mohammad Juzaili v State of Negeri Sembilan [2015] (where the Court of Appeal ruled that Section 66 of the Negeri Sembilan Syariah Criminal Enactment prohibiting cross-dressing was unconstitutional as being a violation of the fundamental rights of the transgender persons), there was clear and unrebutted evidence by both the government and private psychiatrists, which the court accepts, that transgenders are persons with a medical condition called gender identity disorder (GID) and this condition is inherent from birth and is incurable and for life.
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Today (except for only four states) the Sharia enactments of the majority of the states in Malaysia (including that of Negeri Sembilan) no longer make cross-dressing per se a Sharia offence. Cross-dressing is a Sharia offence only if the person cross-dresses for immoral purpose (for example, with a view to soliciting).
In any case, there is a big question mark as to whether, from a constitutional law point of view, it is right for the state to criminalise personal sins. Under the Federal Constitution, criminal law is a federal matter, and criminal offences are defined under federal law, namely, the Penal Code. These are punishable by fines or imprisonment or death. Going by the principles of criminal law, personal sins are not state crimes as they do not constitute threats to life, property or the security of the country.
G25 opposes the deputy minister’s proposal because it will send a signal that it may be a first step towards implementing hudud law in the country. Although the deputy minister may give assurances that the government has no such intention, the public will find it difficult to believe.
We can see how civil societies reacted with scepticism to the government’s recent proclamation of emergency, justifying it as essential for dealing expeditiously with the coronavirus pandemic. The saving grace was the government’s assurance that the emergency would end on 1 August this year.
If the government reneges on its promise and does the opposite by extending the period and taking advantage of its executive powers to restrict political and human rights and our constitutional freedoms, there will be total loss of confidence in the rule of law, leading to catastrophic consequences for the economy.
In the case of Act 355, there will be similar scepticism on the government’s true intention if the legislation is amended, as proposed by the deputy minister. All the efforts being made by the government to rally the public and the business community into believing that we have a bright future, once we have successfully overcome the pandemic, will come to nothing.
In a multiracial society like Malaysia, the prospect of Islamisation in the administration of law is bound to strike fear among the population and potential foreign investors. Even though Islamic law applies only to Muslims, the public will have negative and fearful thoughts of what the future will look like in Malaysia.
G25 believes the best approach in dealing with the LGBT community is to help integrate them into the mainstream of society by not discriminating them or treating them as criminals but by respecting their constitutional right to equality like other citizens of this country and their constitutional right to privacy. If they are threatened with harsh laws and punishments, they will hide from society and refuse to seek health services including effective prevention and treatment for diseases such as HIV for fear of being caught.
Evidence has shown that criminalisation, stigmatisation and discrimination are currently some of the key drivers of infection in an era when HIV infection is completely preventable and treatable. We have seen what happened to the migrant labour who feared arrest and deportation if they came forward to be tested for Covid-19. By hiding themselves in their crowded and unhygienic living conditions, many subsequently became infected, contributing to the escalation of the pandemic in Malaysia.
As Malaysia aspires to become a model developed country for the Muslim world, it must practise a humanitarian approach in dealing with those members of society who are likely to be marginalised or stigmatised and subjected to social censure, such as the LGBT.
This will give real meaning to the concept of “the caring society” which the government says it will incorporate into its development policy planning and implementation. The deputy minister’s proposal must be rejected because it does not fit into the definition of a caring society. – G25
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