Laws that Target LGBT People are a Mockery to the Rule of Law

by NHA

“Rule of Law”. A phrase often used by our former Prime Minister, politicians, lawyers, and those in the position of power in the former Malaysia Baharu. But what does Rule of Law even mean? More importantly, what does it mean to LGBTQ+ persons in Malaysia, who have long been excluded from the fairness and principles of it?

The doctrine of Rule of Law was popularised by British jurist A.V. Dicey in 1885, who viewed it in 3 principles known as “absolute supremacy of law”. Former Lord Chief Justice of England and Wales, Tom Bingham, propounded the quintessential modern description by defining 8 fundamental elements of Rule of Law.

As it is understood, the elements must include equality before the law and the absence of arbitrariness. Essentially, the Rule of Law means that everyone must be treated equally under the law regardless of race, religion, sex, gender, sexual orientation, nationality, ethnicity, disability, political beliefs or other characteristics. The law must guarantee that no individual or group of individuals be privileged or discriminated against by the government and its agencies. 

Tracing back to our historical roots, Malaysia is a country that is founded upon the basic principles of Rule of Law and democracy. However, despite the manifestation of the Rule of Law in our Federal Constitution, it is arguable that the Rule of Law is applied indiscriminately in Malaysia. 

What does Rule of Law mean to LGBTQ+ persons in Malaysia?

LGBTQ+ persons in Malaysia clearly do not enjoy the Rule of Law, evidenced by the fact that they are criminalised and face legal barriers to gender recognition. In Malaysia, adults caught engaging in consensual same-sex conduct can be imprisoned or even sentenced to whipping, and LGBTQ+ individuals are still subjected to widespread violence and legally sanctioned discrimination on a daily basis. 

Under the Federal law, Section 377A of the Penal Code criminalises sexual intercourse between consenting adults, regardless of their gender identity nor sexual orientation. In reality, however, the laws disproportionately affect LGBTQ+ persons, and in turn, criminalises their very existence. In spite of Section 377A being gender-neutral it assumes 2 things: (1) that people should only have sexual intercourse with others of the opposite gender; and (ii) that sexual intercourse is legally acceptable only when it involves the insertion of a man’s penis into a woman’s vagina. Section 377A, therefore, amounts to an unreasonable restriction as it makes sexual intercourse between consenting adults within their private space a criminal offence.

Meanwhile, Syariah laws in Malaysia criminalise LGBTQ+ persons’ sexual orientation and gender identity. In 2015, a group of trans women were arrested in Negeri Sembilan. They were charged under Section 66 of the Syariah Criminal Enactment (Negeri Sembilan) 1992, which makes it an offence to ‘cross-dress’ in public. But they decided to challenge the law in court. They argued that Section 66 violates their fundamental liberties as guaranteed by our Federal Constitution. Amazingly, the Court of Appeal agreed and declared that Section 66 was unconstitutional, null and void. (The decision in the case was later overturned by the Federal Court due to procedural technicalities.)

In 2018, two women were sentenced by the Syariah High Court in Terengganu to 6 strokes of caning each. The charge was for “attempting” consensual same-sex relations. In the same year, 12 men were arrested by the Selangor religious authorities, also for “attempting” consensual same-sex intimacy. In both cases, those detained lacked access to legal representation. In the case of the 12 men, the lack of representation resulted in them pleading guilty before the Selangor Syariah Court. As a result, they were sentenced to 6 strokes of cane each for attempting “sexual intercourse against the order of nature”, an offence under Malaysian Syariah laws.

We need to understand that as a result of these discriminatory laws,  the arrest, detention, and prosecution of LGBTQ+ individuals are a form of persecution of this community. These laws deprive a person’s right to life (with dignity), right to privacy, right to equality, and all other fundamental rights guaranteed to us under the Federal Constitution. Clearly, these laws are bad laws. Not only are they an unjustified deprivation of the liberty of LGBTQ+ individuals, but they are also a gross violation of one’s fundamental rights enshrined in our Federal Constitution.

Sexual orientation is an essential attribute of privacy

Interestingly, the Malaysian Penal Code is drawn from the Indian Penal Code in pari materia. The Malaysian Section 377A almost mirrors the Indian Section 377 (similar law can be found in many former British colonies). However, India has repealed this law. 

In 2018, the Supreme Court of India in Navtej Singh Johar & Ors. v. Union of India, in a unanimous verdict, held Section 377 of the Indian Penal Code unconstitutional. The judges proclaimed that it is irrational, indefensible and manifestly arbitrary to penalise consensual sexual relations between adults. Particularly, it violates the right to privacy and the protection of sexual orientation which lie at the core of the fundamental rights guaranteed by the Indian Constitution. The court went further and held that sexual orientation is an essential attribute of privacy. This is an important point as it allows for a zone of personal autonomy and freedom of choice within which the state cannot intrude. This case marks a triumphant end to a long struggle for justice by the LGBTQ+ community in India.

Needless to say, LGBTQ+ persons possess equal rights under our constitution. However, they are unable to enjoy these rights in the same manner as their heterosexual peers. The harsh reality is that individuals in many parts of the world face severe human rights violations because of their sexual orientation and/or gender identity. 

Do these “bad laws” violate the Rule of Law?

Absolutely yes. 

These bad laws do more than prohibit certain sexual acts. Why? Because these laws not only deny one’s personal autonomy or take away one’s rights to privacy, but they also take away the very core of one’s self-identity. Every aspect of LGBTQ+ person’s sense of self and identity is criminalised, stigmatised and subject to feelings of shame and worthlessness as a result of persistent criminalisation.

Now, you must be thinking: “but isn’t this necessary to maintain public morality?”

I beg to differ. Sometimes it is argued that the rights of an individual may have to be curtailed or interfered with for the benefit of a wider community. But the Rule of Law requires that interference occurs only when it is justified, necessary, proportionate and not arbitrary. In any case, the fundamental elements of the Rule of Law must first be observed.

The terms “maintaining public order”, “public interest”, “national security”, “public morality” and “public health” among others, found in some of our laws are just too far-reaching and could be interpreted as to mean a lot of things⁠—these terms in itself are vague and widely open to abuse. 

For the Rule of Law to be upheld, our fundamental human rights must be respected. Fundamental human rights⁠ must be enjoyed by all—even the marginalised, regardless of what those in a position of authority or the majority at large believe. Respect for one’s identity and individual choice is the essence of liberty. As much as religious beliefs and cultures must be respected, those beliefs and cultures must not undermine the dignity and violate the fundamental human rights of others.

It’s simple. If we do not expect the world to be reasonable and just, then sooner or later we do not demand or expect it from the law. We’ll get used to the arbitrariness, the injustices, and the unfairness. We must always remember what Martin Luther King Jr once said, “Injustice anywhere is a threat to justice everywhere.”

No cause can justify the abuse of human rights

Former philosopher and political theorist at Harvard University, the late Professor Judith Shklar said the expression “Rule of Law” may have become meaningless thanks to ideological abuse and general over-use. 

Law cannot simply be whatever is dictated by those in power or whatever is issued by the state. The Rule of Law is not merely rule by law. For instance, our former Prime Minister Tun Dr. Mahathir Mohamad had consistently said that Pakatan Harapan is committed to the Rule of Law to ensure that everyone is equal in the eyes of the law. 

In the same breath, the government failed to recognise blatant abuse of the Rule of Law itself, i.e. violation and discrimination towards LGBTQ+ individuals, while maintaining draconian laws that prosecute LGBTQ+ individuals. It also failed to enact legislation that protects LGBTQ+ persons based on equality and justice. This is a majoritarian impulse to subjugate minorities to live in silence. 

The essence of the Rule of Law rejects arbitrary power and protects those who are most vulnerable and marginalised. Where LGBTQ+ individuals’ rights continue to be violated in parallel with these arbitrary laws, the Rule of Law has failed.

This begs a very important question we must ask ourselves: is the Rule of Law cited by our politicians merely lip service or do they genuinely believe in the Rule of Law and its virtues? 

– NHA

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NHA is a queer-feminist lawyer who’s passionate in amplifying the voices of the marginalised. This article was originally published on Malaysiakini with the help of Queer Lapis.