The LGBTQ community has always claimed that they are victims of bigotry, abuse and stigmatization. The basis for the support for LGBTQ has always been on rights and equality while the arguments against LGBTQ are usually based on religious teaching and human nature. Here, the author examines the civil rights of the LGBTQ community protected under the Malaysian Constitution. The author finds that criminalizing private consensual sex between competent adults is violative of the right to privacy, dignity, and freedom of expression. Also, it is the author’s view that same-sex couples have a fundamental right to marry and there shall be no pressure on anyone to disguise, subvert or deny their sexual orientation or gender identity. LGBTQ group should not be deprived of their constitutional rights simply because they do not adhere to the majority way of life.
1.0 INTRODUCTIONIt has become axiomatic in the recent international human rights discourse that; LGBTQ rights are human rights and human rights are LGBTQ rights. Nevertheless, in this context, the dual justice system in Malaysia appears to suggest that the rights of LGBTQ community are yet to be recognized, when the so-called unnatural relationships are prohibited under both Syariah Law and Penal Code. Also, there are instances when the conservative religious leaders holding significant political and cultural power openly condemned LGBTQ people as un-Islamic and immoral. Consequently, the LGBTQ community has always claimed that they are victims of bigotry, abuse and stigmatization. Given all these realities, yet we aren’t alien to organizations fighting for LGBTQ rights. Therefore, it would be relevant to examine the civil rights of the LGBTQ community protected under the Malaysian Constitution.
LGBTQ is an acronym which stands for Lesbian-Gay-Bisexual-Transgender-Queer. It is trite that in Malaysian context, The LGBTQ community had struggled to gain endorsement for their rights by seeking international and domestic legal recognition. Ng described that the Government of Malaysia has shaped the country as a modern Muslim nation distinct from the West and has frequently labeled homosexuality as a deviance from or connected with Western values.1
According to Wan Roslili, the most common demand in LGBTQ struggle is the legalisation of same-sex marriages and abolishment of discriminatory laws such as the offence of sodomy.2 She also explained that the basis for the support for LGBTQ has always been on rights and equality. MacKinnon and Fiala in their book expressed that “the ideal of equal treatment and equal respect for all people regardless of race, ethnicity, sex, sexual orientation, national origin, and religion is an important goal, one that contemporary societies are still working to achieve.”3 According to Bentham, there is no reason for punishing homosexuality because it is neutral behaviour and does not cause pain to anyone if viewed outside the realms of morality and religions.4
The opponents against LGBTQ essentially lay their arguments on religious teaching and human nature. Ashgar Ali and Yusuff Jelili Amuda described LGBT as ‘a sheer violation of marriage institution’ and disrespect for human being as it ‘contradicts the very nature of man’s creation.’5 Rohani and Fieza Fazlin meanwhile called LGBT as a ‘deviant agenda’ and stated that there is an urgent need for Malaysia to initiate action to eliminate Yogyakarta principles.6
Interestingly, none of the works cited above scrutinized the rights of LGBTQ community in light of Malaysian Constitutional framework. In this context, fundamental liberties of an individual are enshrined under Article 5 to 13 of Federal Constitution. Such articles protect a large number of political, civil, economic and cultural rights. According to Emeritus Professor Datuk Dr Shad Saleem Faruqi, the overarching scheme of the Constitution apparently sets certain limits on the power of the Parliament to restrict these rights, when the constitutional provisions create “obstacles of varying difficulty in the path of those who would lay rash hands upon the ark of the Constitution”.7
In this context, Pevnick explained that the conventional objective of civil rights or civil liberties is to protect the high-priority interests of a disadvantaged minority from being repressed by a predatory majority. These civil liberties may be restricted if they are necessary to capture benefits that are both desirable and compatible with the wider concept of democracy, such as equality and non-discrimination.8
At international level, Statement on Human Rights and Sexual Orientation and Gender Identity requires that human rights apply equally to every human being, irrespective of sexual orientation or gender identity. Yogyakarta Principles, meanwhile, outline the States’ obligation to respect, protect and fulfill the human rights of all persons, regardless of their sexual orientation or gender identity. Thirty countries and territories have enacted national laws allowing same-sex couples to marry.9 Netherlands is the first country to legalize same-sex marriages while the latest country which legitimizes same-sex marriage to date is Costa Rica. Currently, Taiwan is the only region in Asia legally recognizes same-sex marriages. Also, there are currently 73 jurisdictions criminalizing private, consensual, same-sex sexual activity and almost half of them were Commonwealth jurisdictions.10
If we look at Malaysian’s situation, Section 377A of the Penal Code criminalizes ‘carnal intercourse against the order of nature’. Leong observed that prosecutions were generally targeted against male-male sex acts despite the language of the section did not specifically referred to homosexual relation.11 Various state enactments also provide the same by prohibiting sexual relations between male persons (Liwat) and sexual relations between female persons (Musahaqah).12 Cross-dressing, a form of gender expression usually associated with transgender is also prohibited under state laws.13 Also, Section 69 of Law Reform (Marriage and. Divorce) Act 1976 provides that the marriage is void, inter alia, when ‘the parties are not respectively male and female.’ Similar prohibition is observed in Islamic family law too. For instance, Section 11 of Islamic Family Law (Federal Territories) Act 1984 provides that a marriage shall be void if it is not according to Hukum Syarak.
In 1983, a fatwa was issued to prohibit all sex change operations performed by Muslim surgeons. In addition, the repression of homosexuality is accompanied by general censorship of LGBTQ rights advocacy. At the height of the Anwar Ibrahim sodomy trial in 1998, the Government formed The People’s Voluntary Anti-Homosexual Movement to combat homosexualism. The 2011 ban on Seksualiti Merdeka, an annual sexual rights festival, was seen as a spike in hostility to the LGBTQ community in Malaysia. Due to pressure, in May 2017, the LGBT pride march organized by Taylor’s University was cancelled. In September 2018, two women were convicted of attempting to have lesbian sex and fined RM 3,300 and caned six times before an audience in the Terengganu State courtroom. These show that discrimination against LGBTQ is widespread, and both government and private sectors have tried to restrict expression in support of LGBTQ rights.
In addressing LGBTQ controversy, Wan Naim recommended a two-step approach: first, to provide a detailed overview of particular rights that were infringed, as well as a specific delineation and distinction between the various sexual or gender-based communities; second, to facilitate and analyze a vibrant and multi-dimensional public discussion on the effect of these activities on society as a whole.14 Notably, Wilkinson, Gerber, Offord, and Langlois found that the enactment of laws will not necessarily remove social and political backlash to the acknowledgement of homosexuality, and that the presumption that if the law goes, society should follow would be at least over-simplistic. Their observation was that, even in those countries or states which have achieved full legal equality, LGBTQ individuals are more likely to face bigotry or inequality which gravely impacts on their health and well-being, as compared to their heterosexual or cisgender equivalents.15
The author is aware of the claims that LGBTQ is inconsistent with Shariah principles. The author is also aware that, on the basis of ultra vires, a Selangor state law prohibiting unnatural sex has been challenged.16 However, these discussions are regrettably beyond the scope of this article. Instead, the author in this article would discuss several fundamental rights associated with common demands in LGBTQ struggle such as decriminalization of same-sex relationship, legalization of same-sex marriage, and right to recognition.
3.1 DECRIMINALIZATION OF SAME-SEX RELATIONSHIP
In both Lim Meng Suang and another v. Attorney-General17 and Ong Ming Johnson v. Attorney-General and other matters,18 the Singaporean courts found that a provision criminalizing sex between consenting male adults was not unconstitutional under Article 9, which guarantees the right to life and personal liberty, and Article 12 which guarantees equality before the law. In contrast, in Navtej Singh Johar & Ors. v. Union of India, & Secretary, Ministry of Law and Justice,19 the Supreme Court of India unanimously held that all consensual sex among adults, including homosexual sex should be decriminalized.
It is the author’s humble view that the two Singaporean cases cited above are less relevant to Malaysian situation, because the Singaporean court adopted a much narrower interpretation of the phrase ‘life or personal liberty’ by construing it only to a person’s freedom from an unlawful deprivation of life and unlawful detention or incarceration.20 Meanwhile, it is to be noted that Malaysian court had taken a more liberal approach in interpreting the meaning of ‘life’ appearing in Article 5(1) of the Federal Constitution. The word ‘life’ does not refer merely to the act of breathing and living but incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life.21 While the phrase ‘in accordance with law’ requires specific and explicit law that provides for the deprivation of life or personal liberty,22 nevertheless such law must also be one that is fair and just but not merely any enacted law however arbitrary, unfair, or unjust it may be.23
Because of the fact that the Malaysian Penal Code is later twin of the Indian Penal Code, Section 377A of the Malaysian Penal Code and related State laws banning consensual sexual intercourse should be deemed unconstitutional as Federal Constitution of Malaysia includes most, if not all, of the fundamental rights discussed in Navtej’s judgments. Fundamental rights provided for in our Federal Constitution must include the right to live with human dignity.24 In Nik Noorhafizi bin Nik Ibrahim & Ors v. Public Prosecutor,25 it was found that ‘the concept of rule of law does not permit legislature or executive to subject its citizen to any form of arbitrariness which will impinge on them to enjoy the dignity of man.’26 Sexual orientation is an integral and inherent facet of each individual’s identity and thus must be one protected under Federal Constitution. Gopal Sri Ram FCJ (as he then was) in another case found that ‘…it is patently clear from a review of the authorities that ‘personal liberty’ in art 5(1) includes within its compass other rights such as the right to privacy…’.27 It is thus the author’s view that, in concurring with the decision in Navtej¸ criminalizing private consensual sex between competent adults is violative of the right to privacy, dignity, and freedom of expression, which are protected in Federal Constitution.
Also, the spirit of the constitution is that all discrimination is illegal unless expressly permitted by the basic law or adjudged by the courts to be reasonable.28 For the test of permissible classification be satisfied, the classification must be founded on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved by the statute in question.29 Notably, consensual sex between competent adults can no longer be labelled as ‘intercourse against the order of nature’ since empirical results show that homosexuality is a healthy, normal and positive variation of human sexuality.30 Also, the World Health Organization had removed homosexuality from International Classification of Diseases in 1992. Considering the contemporaneous developments, the author is of the opinion that Section 377A of the Penal Code cannot be found as one based on any rational criteria since mainstream psychologists and psychiatrists no longer consider homosexuality a form of mental illness.
3.2 LEGALIZATION OF SAME-SEX MARRIAGE
In Kimberly Hively v. Ivy Tech Community College of Indiana,31 it was found that sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. Our constitution, being a living piece of legislation, must be ‘construed broadly and not in a pedantic way’.32 While the author recognizes that the term used in Article 8(2) is ‘gender’ rather than ‘sex,’ the humble view of the author is that discrimination on the sole basis of sexual orientation justifies arguments that such discrimination violates Article 8(2) of Federal Constitution which prohibits gender discrimination.
In Halpern and Others v. A-G of Canada and Others,33 the Canadian Court found that any potential discrimination arising out of the differential treatment of same-sex couples was based on sexual orientation. The author of this article stands by the contention that differential treatment solely on the sexual orientation is discriminatory in nature. There is a growing consensus that homosexuals should no longer be deprived of the benefits of citizenship available to heterosexuals, such as the ability to contract marriage, on the sole ground of their sexual orientation.34 In Sunil Babu Pant v. Nepal Government,35 the Supreme Court of Nepal located the rights of LGBTQ persons to their sexuality within the right to privacy and held that all individuals, irrespective of their sexual preference, had an absolute right to marriage. The majority opinion of US Supreme Court in Obergefell v. Hodges meanwhile found that there is no difference between same-sex and opposite-sex couples as to marriage in forming the keystone of the nation social order.36
In an Indian case, it was found that the expression of choice in accord with law is acceptance of individual identity.37 Equally, in Jones v. A-G of Trinidad and Tobago,38 the UK High Court observed that the right to choose a partner and to have a family is intrinsic to an individual’s personal autonomy and dignity. Following these foreign case laws, marriage is fundamental in recognizing a couple’s mutual love and commitments to one another, and marriage is no longer equated to procreation per se.39 The right to choose a life partner must be viewed as an intrinsic feature of the right to life provided in Article 5(1) because marriage decisions are among the most important decisions a person can make.
There may be concerns that what being guaranteed is right to marriage rather than right to marriage of the same sex, because same-sex marriages do not result in reproduction. It may be also argued that same-sex marriage does not fall within the traditional definition of ‘marriage’ requiring ‘the union of one man and one woman’.40 The author submits, with due respect, that such arguments are factually inaccurate because they are over-circular and conclusive. It is the author’s view that same-sex couples have a fundamental right to marry because procreation is an important, but not a quintessential attribute of marriage.41 This is evident when non-procreative heterosexual couples are allowed to marry, and society would never require them to fulfill this fertility requirement. Also, same-sex marriage would not affect the number of LGBTQ since homosexual orientation seems invariant to legal sanction.42 What seems likely to happen is that, when same-sex marriage is allowed, truly heterosexual spouses will have more procreative sex than they have had with closeted homosexual partners, thus torpedoes the narrative that same-sex marriage would reduce human population.
3.3 RIGHT TO RECOGNITION BEFORE THE LAW
This concerns the right of LGBTQ to have his or her status officially recognized. The author’s assertion is that the right of LGBTQ to express themselves, particularly transsexuals, is in fact acknowledged and secured within our constitutional system. There shall be no pressure on anyone to disguise, subvert or deny their sexual orientation or gender identity. In Muhamad Juzaili bin Mohd Khamis & Ors v. State Government of Negeri Sembilan & Ors,43 the Court of Appeal found that a state law prohibiting Muslim men from cross-dressing was inconsistent with Articles 5(1), 8(2), 9(2) and 10(1)(a) of the Federal Constitution. To quote Mohd Hishamudin JCA (as he then was), the impugned provision is ‘degrading, oppressive and inhuman’ because the transsexuals will ‘commit the crime of offending s. 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialise’.44 Although the decision was overruled in Federal Court,45 the author is of the view that the Court of Appeal’s decision remains persuasive, as the overruling was made on procedural non-compliance rather than the substantive issues of constitutionality.
In JG v. Pengarah Jabatan Pendaftaran Negara,46 after considering the sex change of the plaintiff as well as her psychological aspect, the court granted a declaration that the plaintiff be declared a female and the last digit of her identity card was directed to change to a digit that reflects a female gender to ‘give full effect to Article 5(1) of the Federal Constitution’.47 In another case, the court found that the concept of ‘life’ must necessarily encompass the right of a female who underwent gender reassignment surgery to ‘live with dignity as a male and be legally accorded judicial recognition as a male’.48
All of these cases must have clearly shown that the expressions of gender identity are recognized in our Constitution. Denying such rights to recognition will ultimately amount to destroying the individual’s identity.
While the author acknowledges that LGBTQ is a minority community in Malaysia, LGBTQ individuals should be entitled to exercise their rights to constitutional protection when they are discriminated. To quote Salleh Abbas LP (as he then was), ‘we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.’49 The author believes that it would be wrong for the majority to enforce social morality or prevailing religious beliefs to the detriment of the minority’s individual rights. LGBTQ group should not be deprived of their constitutional rights simply because they do not adhere to the majority way of life.
- Eve Ng, ‘LGBT Advocacy and Transnational Funding in Singapore and Malaysia’ (2018) 49 Development and Change 1099.
- Wan Roslili Abd. Majid, ‘Rights Demanded by LGBT People: A Preliminary Refutation’ (2015) 8 TAFHIM: IKIM Journal of Islam and the Contemporary World 41.
- Barbara MacKinnon and Andrew Fiala, Ethics: Theory and Contemporary Issues (Cengage Learning 2014) 175.
- Jeremy Bentham and Louis Crompton, ‘Offences Against One’s Self: Paederasty’ (1978) 3 Journal of Homosexuality.
- Ashgar Ali Ali Muhammed and Yusuff Jelili Amuda, ‘LGBT: An Evaluation of Shariah Provisions and the Laws of Malaysia and Nigeria’ (2018) 8 GJAT 15.
- Rohani Binti Abdul Rahim and Fieza Fazlin Fandi, ‘Claims of Human Rights: A Challenge to the Nation of Islam in ASEAN Community in Addressing LGBT Issues’, ASEAN Community Conference 2015 (2015) 127.
- Shad Saleem Faruqi, Our Constitution (Thomson Reuters Asia Sdn Bhd 2019) 59.
- Ryan Pevnick, ‘Should Civil Liberties Have Strict Priority?’ (2015) 34 Law and Philosophy 541.
- David Masci, ‘Gay Marriage Around The World’ (Pew Research Center’s Religion & Public Life Project, 2019) https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/ accessed 31 May 2020.
- ‘Map of Countries That Criminalise LGBT People’ (Human Dignity Trust, 2020) accessed 1 June 2020.
- Laurence Wai-Teng Leong, ‘Singapore’, Sociolegal Control of Homosexuality: A Multi-Nation Comparison (Plenum Press 2020).
- For Liwat, see s. 25 of Syariah Criminal Offences (Federal Territories) Act 1997, s. 14 of Syariah Criminal Code 1985, s. 63 of Syariah Criminal (Negeri Sembilan) Enactment 1992 and so on. For Musahaqah, see s. 26 of Syariah Criminal Offences (Federal Territories) Act 1997, s. 15 of Syariah Criminal Code 1985, s. 64 of Syariah Criminal (Negeri Sembilan) Enactment 1992 and so on.
- For example, s. 72 of Syariah Criminal (Malacca) Enactment 1991 prohibits men posing as women ‘without reasonable excuse’.
- Wan Naim Wan Mansor, ‘Re-Examining Majority-Minority Relations in the Era of ‘Malaysia Baharu’  1 LNS(A) lxix, 3.
- Cai Wilkinson and others, ‘LGBT Rights in Southeast Asia: One Step Forward, Two Steps Back?’ (2017) 3 IAFOR Journal of Asian Studies 6.
- Iki Putra Mubarrak v. Kerajaan Negeri Selangor  1 LNS 454.
-  SGCA 53.
-  SGHC 63.
- Writ Petition (Criminal), No. 76 of 2016 with 5 other writ petitions.
- Lim Meng Suang (n. 17) 43, -.
- Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan  2 CLJ 771, 801.
- In Re Mohamad Ezam bin Mohd Nor  5 CLJ 156, 161.
- Alma Nudo Atenza v. Public Prosecutor and Another Appeal  5 CLJ 780, 822, .
- An Overview of the Right to Life under the Malaysian Federal Constitution  6 MLJ xxxiv.
-  6 MLJ 660.
- ibid, 702.
- Sivarasa Rasiah v. Badan Peguam Malaysia & Anor  3 CLJ 507, 519, .
- Faruqi (n. 7) 123.
- Public Prosecutor v. Su Liang Yu  2 MLJ 128, 130.
- Task Force on Appropriate Therapeutic Responses to Sexual Orientation, ‘Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation’ (American Psychological Association 2009) http://www.apa.org/pi/lgbc/publications/therapeutic-resp.html accessed 12 June 2020.
- 830 F.3d 698 (7th Cir. 2016).
- Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus  1 MLJ 29, 32.
-  3 LRC 558.
- Michèle Finck, ‘The Role of Human Dignity in Gay Rights Adjudication and Legislation: A Comparative Perspective’ (2016) 14 International Journal of Constitutional Law, 26.
- Writ No. 914 of 2007.
- 576 U.S. 644 (2015).
- Shafin Jahan v. Asokan K. M. and others LNIND 2018 SC 175.
-  3 LRC 651.
- Jamal Greene, ‘Divorcing Marriage from Procreation’ (2005) 114 The Yale Law Journal 1995.
- Singer v. Hara, 11 Wn. App. 247.
- Dale Carpenter, ‘Bad Arguments Against Gay Marriage’ (2005) VII Florida Coastal Law Review 204.
- ibid 199.
-  1 CLJ 954.
- ibid 970, .
- State Government of Negeri Sembilan & Ors v. Muhammad Juzaili Mohd Khamis & Ors  8 CLJ 975.
-  4 CLJ 710.
- ibid 716.
- Tan Pooi Yee v. Ketua Pengarah Jabatan Pendaftaran Negara  8 CLJ 427, 452.
- Che Omar bin Che Soh v Public Prosecutor  2 MLJ 55, 57.