The following press statement was issued on Dec 14, 2009 and posted on suaram.net. The statement was also published in The Sun Daily on Dec 15.
Malaysia’s sodomy laws: Progress with the times!
By Dr Kua Kia Soong, Director of SUARAM, 12 Dec 2009
Ever since the political trial against Anwar Ibrahim for sodomy in 1999, I had been hoping that the gay community in Malaysia (“the pink brigade”) would have spoken out against our antiquated sodomy laws and fought for equality of treatment for all consensual sex between adults. I have always believed that the rights of any section of our community must be fought for and led by that particular section, for only then can the exploited and those transgressed against be empowered in the process.
All over the world, not just in the West, the times are certainly changing. On 2 July 2009, the Delhi High Court delivered a historic judgement to amend a 149-year-old colonial-era law and forthwith decriminalised private consensual sex between adults of the same sex. India became the 127th country to take the guilt out of homosexuality. Only rape and paedophilia remain offences under the law.
Inclusiveness
The Delhi bench invoked Jawaharlal Nehru's politically resonant theme of inclusiveness:
"If there is one constitutional tenet that can be said to be (the) underlying theme of the Indian Constitution, it is that of inclusiveness… "
"Those perceived by the majority as `deviants' or `different' are not on that score excluded or ostracized.'' (The Times of India, 3 July 2009)
Equality
The Delhi High Court further ruled:
"Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs (lesbians, gays, bisexuals and transgenders) are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual…"
"There is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality.''
Article 8 of the Malaysian Federal Constitution guarantees the equality of all persons. If this is not specific enough, the Malaysian Charter on Human Rights by Malaysian Civil Society in 1994 spells this out more specifically:
“There shall be no discrimination in the rights and privileges of persons based on their ethnic origin, class, social status, age, sex, mental and physical being, language, religious belief, sexual identity or political conviction…” (Article 8: 2)
Recently, Judge Jonathan Heher of the Johannesburg High Court struck down South Africa's sodomy law on the grounds that it violated the nation's new constitution which bars discrimination on the basis of sexual orientation:
“To penalize a gay or lesbian person for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences of religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history."
Just a few months earlier Ecuador's Supreme Court ruled that nation's sodomy law unconstitutional. And Romania's new prime minister recently promised to repeal his nation's sodomy law to bring it in line with that of the European Union.
Pragmatism
Even closer to our shores, the attitude of our southern neighbour, Singapore, to homosexuality is also changing. In April 2007, Minister Mentor Lee Kuan Yew said in a Reuter’s report:
"If in fact it is true, and I have asked doctors this, that you are genetically born a homosexual -- because that's the nature of the genetic random transmission of genes -- you can't help it. So why should we criminalize it? …Let's not go around like moral police ... barging into people's [bed] rooms. That's not our business… So you have to take a practical, pragmatic approach to what I see is an inevitable force of time and circumstances."
Lee said Singapore should no longer discriminate against homosexuals but must take a pragmatic approach. Lee's comments came at a time when many groups, such as The Singapore Law Society, are clamouring for a review of antiquated British colonial laws against homosexual sex, which they view as outdated and archaic.
Humanity
The plight of Malaysian transsexuals such as Fathine, is but the latest in a litany of woes suffered by lesbians, gays, bisexuals and transgenders (LGBT) in this country. For a society that claims that our Asian values are far superior to Western values, such demeaning treatment of our LGBT community is unacceptable. What has happened to that slogan by the BN government to create a “masyarakat penyayang” (a caring society) ?
Stand Up For the Rights of all LGBT
On the grounds of inclusiveness, equality, pragmatism and humanity, it is time for all progressive Malaysians, political parties and organisations to stand up for the rights of all LGBT and to call for the abolition of our outdated sodomy laws.
Reader's Comments
I did read those things like law in Malaysia.
It stated the Islam in Malaysia treated as the main(preferred) religion in Malaysia only.
Yes, we must stand out for ourselves, there is something to prove us are right and we are nature to be gay...
I want us to be free from those stupid bible or stupid law. Just confuse human here!
Well best of luck to him. I don't mean to be sarcastic or a downer, but he'll have better luck genetically engineering wings to grow from pigs.
He added:
"A coalition of local and international organisations with an interest in sexual health, and the Youth Task Force (an organisation set uop in the UK to help improve outcomes for at risk young people) conducted a global survey of the attitudes of youth towards sex and contraception in conjunction with World Contraception Day 2009.
The findings about Malaysian youths were disconcerting, i.e.
● About 20% have had sex with a new partner without using contraception;
● More than 20% of females did not use contraception because they did not like it;
● About 20% females did not use contraception because their partner preferred them not to;
● Prior to having sex for the first time, about 60% did not discuss contraception or found it difficult to talk about it;
● More than 56% were not familiar with or confused about the different contraceptive methods available;
● About 20% had sought contraception advice on the internet;
● 59% would like to consult someone in confidence;
● 57% thought that sex education in school could be improved; and
● 91% thought that the condom is an effective contraceptive method."
These findings are mainly due to "...Another factor is sexuality education, or the lack of it. This issue is perceived by certain quarters as sensitive because of cultural and religious reasons."
Although this article focused on teen premarital sex among heterosexual youth, it also cites some global statistics (and although the year of reference is 2000 it is doubtful they have improved/decreased since) :
"Data from studies from the National Population and Family Planning Board revealed that the prevalence of sexual intercourse among adolescents in 2004 was 2.2% as compared to less than 1% in 1994.
A study by Zul et al (2000) revealed that 18.2% and 7.1% of adolescent males and females respectively were sexually active. The National Health and Morbidity Survey (1996) reported that 1.8% of male students were sexually active with the incidence in male students twice that of female students. The relationships were heterosexual in 63.2% and homosexual in 19.9% (13.7% gays and 6.2% lesbians). About 9.4% had sex with prostitutes."
Granted that male students having gay sex representing 19.90% (13.7% gays and 6.2% lesbians) does not make them gays or lesbians for the rest their lives if only due to 'a sexual phase/experiment', family and/or religious pressures, or simply because they decide a heterosexual sex life is 'easier to deal with' (thus becoming, most of them, bisexuals later in life).
In view of the above, Malaysia, and among East Asian countries, Malaysia specially, has a long way to go towards decriminalizing gay sex (Singapore has identical laws but seldom
use and put in force) if only due to the government's easy branding of 'Asian values' to blanket any opening towards recognising its existing gay population (as elsewhere in the world) and to shariah laws the same government finds either unpopular to debate (let alone question, as in the recent case of beer drinking) or serving its own purpose to subjugate its people to middle-age customs.
The problem is always the same: if you wish your voice to be heard, do what it takes, don't sit back thinking what can I do by myself, don't be afraid to lose a slice of your daily comfort zone hidden in the closet because this is exactly what your opponents hope you will do thus given them an(other) opportunity to suppress your freedom.
"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
Benjamin Franklin,1759
Let not Dr Kua Kia Soong be the lamb among the lions for the admirable task ahead of him.
JPS
Another problem is Malaysia's dual court system and the legal obstacle for Muslims (majority of Malaysians) to break free from the jurisdiction of the Muslim Court. Muslim people and the High Court do not have the right to convert anyone from Islam; only the Muslim Court does. So, even if sodomy laws are removed from the secular court, the majority in Malaysia may still be subject to prosecution in the Muslim Court.
With this, I hope I have elaborated why, even if Dr Kua succeeds in repealing the sodomy law under the secular court, he still cannot protect the majority from sodomy charges. This is the most important point that anyone fighting for the repeal of sodomy laws in any country with a dual court system that includes a Muslim Court must realise. Even if sodomy laws are removed from the secular court, it will still stay in the Muslim Court.
Hence my conclusion that if gays in Malaysia wish to enjoy more freedom, they should just make a silent, peaceful exit. We must respect Malaysia's official religion, Islam. There are many more liberal countries where you can work and live in as long as you possess marketable skills and satisfy their immigration requirements.
If Malaysian human rights people like this guy think the time is right, then why not? Better that 40% of people have the right at least, rather than zero percent.
While Dr Kua's words ring true, allow me to point out one fact. The gay community is a minority in Malaysia, and while we have NGOs such as Amnesty International, the PT Foundation, the Malaysian AIDS Council ex-president and now Suaram speaking up for such rights, I consider it rather farcical.
For example, let's talk about the Bar Council, who in the last Seksualiti Merdeka festival was featured here on Fridae.
When the recent media uproar on the transsexual named Fatine was attacked on all sides, they have remained mum. In fact, all they've done is highlight articles from Malaysian online media based on the subject.
In fact, the Seksualiti Merdeka chorus was much louder than the would be bunch of lawyers.
While NGOs continue to state their support for the LGBT community, their actions are lacking in the quest for equal rights, but instead focus more towards the health aspects, as per PT Foundation and the Malaysian AIDS Council.
Therefore, if Dr Kua insists that we follow the Delhi initiative in the fight to undo 377, then he would perhaps like to start by making our Constitution inclusive, as per Nehru's stance. And if he does wish for such, he should then perhaps fight for "sexual orientation" to be included in article 8 (2) of the Malaysian Federal Constitution.
While NGOs and retired politicians are standing up for the rights of sexual minorities in Malaysia (and Singapore), politicians are still acting cowardly. Like Singapore, Malaysia may say they like to keep Section 377 in the books for the sake of "conscience" and not enforce it, but LGBTs are still discriminated and not everyone is equal in the eyes of the law and the people. How can the conscience be at peace when people's dignity are unreasonably pulled down?
Judge Jonathan Heher of the Jo'burg High Court couldn't have said it better in these words: "To penalize a gay or lesbian person for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences of religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history."
Hear ye!
It is now up to the authorities to choose compassion and common sense over outdated rules and long-standing religious tradition. I hope they learn from societies that are tolerant of LGBTs to see that their fears are really unfounded and stumbling blocks to real progress in human civilization.
Section 377 originated from UK. It is outdated, show no respect for basic human rights and bigoted. It should be repeal altogether so that the police and judiciary can focus on crime prevention. Also unethical politician cannot use this outdated law as political weapon like currently being used against Malaysian opposition leader DSAI
A more feasible and instant way to help Malaysian gays (and those in Africa) is not to try to change the system, but to empower their gays through education. If we are talking about the entire nation, it's quite impossible. But if we are talking about just the gays, who are still the minority, it's more achievable. And this can realistically be achieved within the next 5-10 years, not century, if the gay community put their heart and soul to the Educate the Gays project in order to counter the homophobic Kill/Jail the Gays laws.
To be more specific about what I am driving at, Malaysian gays who are working in Singapore, Hong Kong, Taiwan, Australia, New Zealand, the UK and the US could establish support groups in their new countries of residence to help interested Malaysian gays in Malaysia to migrate to these countries. If these Malaysians wish to retain their rights as Malaysian Citizens, they are free to keep their Malaysian citizenship. They may apply for Work Permit, Employment Pass or Permanent Residency of these host countries in order to work there. Repressive countries deserve to suffer brain drain.
Specific programmes that Malaysian gays may look into include scholarships, Work Permit and Employment pass in Singapore. Malaysians who have passed their SPM (GCSE equivalent) exams or who possess vocational skills such as cooking and hairdressing may quite easily find employment in Singapore. Those who wish to become healthcare professionals may apply for a scholarship to study Nursing in Nanyang Polytechnic. Africans may be assisted to apply for the Green Card Lottery in the USA, refugee status for humanitarian immigration to Australia, or jobs in these developed countries.
The three key things they need to possess can be categorised as:
1) health (e.g. free of HIV and other diseases)
2) English proficiency
3) Skills or academic qualification (e.g. a vocational certificate in hairdressing, SPM, GCSE, a professional qualification, or a degree).
These, together with the advisory support from their fellow nationals who are already working or studying in their chosen host country, would pave the way for their peaceful, quiet exit to a much better place where these basic rights are their entitlement. It's certainly more attainable for most people who don't wish to spend their whole lifetime opposing the established social institutions and norms.
So, I'd urge Malaysian gays who are working in Singapore, HK, Taiwan, Aust, etc. to form such informal support groups to help your fellow Malaysian gays in Malaysia to emigrate. You might provide informal advice such as by sharing your personal experience of obtaining the right qualifications and work experience that paved the way to your successful migration. Better still, a holistic support service including educational advisory (e.g. where could they find an affordable and recognised hairdressing school), financial aids (e.g. how can they apply for EPF to pay for their fees of obtain study loans), online coaching in English or professional exams (e.g. tips on how to pass TOEFL or LCCI exams), etc. could be offered in order to streamline their emigration.
If we can get each Malaysian working in these countries to become the Emigration Coach of just 2 or 3 Malaysians in Malaysia, we could potentially help tens of thousands of the latter group to emigrate successfully. The Malaysian gay community should strive to assist as many as possible those gays who wish to emigrate since it's quite unlikely that the anti-gay laws and policies in this country can be repealed in our lifetime. Moreover, their economic policies, crime rate, corruption, etc. are unlikely to nurture better employment and business opportunities than what are available overseas.
And, in the case of West Malaysians emigrating to Singapore to work, it involves minimal inconvenience since you can conveniently visit your home town during the weekends. Many of my Malaysian friends who are working in Singapore visit their family at least once a month. Their family are usually quite happy with them working in Singapore because it usually means they are able to bring home more money.
Furthermore, with more gay immigrants to Singapore, the gay community in Singapore will expand numerically, and become more powerful, both economically and politically. This certainly helps. My personal experience also tells me that gay immigrants are much more willing and likely to come out than home-grown gays in Singapore. Being overseas, these immigrants are less worried about the potential conflicts with their family as a result of coming out. And, given that the majority in the gay community in Singapore are still closeted (for a valid fear, which is potential conflict with their family, in most cases), it's very hard to promote gay visibility in Singapore on the gay activists' part. One quick means to doubling or even tripling the Out population here is to attract more gay immigrants to live and work in Singapore. After they obtain the PR status, they may even participate in legal gatherings in Singapore. If we want to see a quick increase in the attendance of future Pinkdot gatherings, one viable way is to attract more gay immigrants to Singapore who eventually become Singapore PRs. The Singapore government has planned for more than 1 million immigrants to Singapore in the coming years. Of this, isn't it better if we have a higher proportion of gays?
So, coming back to Dr Kua, while I am impressed with his ideology and while I hope he may to continue in his noble pursuit, I think that, for most Malaysian gays to enjoy more rights during this lifetime, my above proposal is more practical.
Cooking and hairdressing for Singaporeans? Nothing wrong with those professions, but it sounds a little stereotyped and patronising; and moving to Singapore is hardly liberating for a gay person, quite the contrary. Unless you come from Rwanda or Uganda I suppose.
But KL is way more cosmopolitan than Singapore in my experience, and very gay friendly, so maybe there is hope.
1- 3 Nov 2008
Updated: Penang police arrests 70 at 4 raids
by News Editor
Over the weekend, police raided four massage parlours and gay saunas. A source told Fridae that there were no sex parties in progress during the police raids despite being reported by the media.
[ http://www.fridae.com/newsfeatures/2008/11/03/2148.updated-penang-police-arrests-70-at-4-raids ]
2- 6 Nov 2007
penang police arrest 37 men at ''sex party''
by News Editor
Thirty-seven men including three workers have been arrested on Sunday night at a fitness centre-cum-sauna in northern Malaysian island of Penang.
[ http://www.fridae.com/newsfeatures/2007/11/06/1933.penang-police-arrest-37-men-at-sex-party ]
3- 29 Oct 2008
Malaysia's Islamic authority bans ''tomboyish'' behaviour and lesbian relations
by News Editor
Citing a spate of cases involving young women "behaving like men and indulging in lesbian sex" as reported by the Malay language Berita Harian, Malaysia's National Fatwa Council has announced a ban on "tomboyish" behaviour and lesbian relations.
[ http://www.fridae.com/newsfeatures/2008/10/29/2146.malaysias-islamic-authority-bans-tomboyish-behaviour-and-lesbian-relations ]
4- 17 Aug 2009
Malaysian 'doctor' links masturbation and gay sex to H1N1 flu
by News Editor
When asked to clarify, Malaysia’s Health Ministry Director General refused to comment on the accuracy of the news report carried by the government's official news agency Bernama News which reported that while heterosexual sex acts are safe, masturbation and homosexual activities could make one susceptible to the H1N1 virus.
[ http://www.fridae.com/newsfeatures/2009/08/17/8809.malaysian-doctor-links-masturbation-and-gay-sex-to-h1n1-flu ]
A lot of the info you give is probably helpful, though most Malaysians I know are as highly educated as the Singaporeans and Brits, and more so in many cases. I'm aware that many gays and other minorities already leave to get education, jobs etc. I think we have over 100,000 Malaysian students in the UK, I read somewhere. Very many Singaporeans also come here, particularly if they're gay, though I've no idea how many. Of my extended Singaporean and Malaysian family (by marriage), most of those of my generation and younger are living in the UK. It's a perfectly understandable course of action.
Not everyone has that option though. And whatever officials get up to in Penang or elsewhere, I have to repeat, KL is very gay friendly in my experience, more so than Singapore, and I'm talking about ordinary people, not government people. So maybe there would be support. On the other hand if there are local religious extremists of whatever variety who would oppose, maybe it could make things worse. Only people that live there can decide what's best from their point of view.
But when this common-sense, supportive straight guy stands up for gay people, and asks that all right-thinking people support us, I think we can at least give him a thumbs-up, and a thanks, and not just a sharp intake of breath.
In regards to your observation of KL, the capital of Malaysia, I think the liberalism there is at most superficial. The same applies to Penang, which had been perceived to be liberal until something happened. And that's why it had a thriving gay scene and parties when the raids happened.
Until the homosexuality laws have been repealed in the secular court, gays in Malaysia are still subject to prosecution. The PM of Singapore had declared that 377a won't be enforced proactively, but the Malaysian PM hasn't, and likely won't. This effectively means that the police in Malaysia can exercise discretion on this issue.
It takes just one homophobic senior police officer to lead a homophobic action like that in Penang. Similarly, it took just one homophobic senior health official to allege, via the Ministry of Health's platform, that homosexuality exposes us to H1N1. The homophobe got away with it anyway: the case closed after the Ministry of Health declined comment when contacted by the press.
And neither the Malaysian PM nor the Chief Minister of Penang had assured that such police raids and homophobic comment wouldn't repeat. As such, my personal take is that we shouldn't assume that KL has truly liberalised simply because no action had yet been taken against us.
Coming back to the repeal, we must also realise that Malaysia is a constitutional monarchy headed by the Yang di-Pertuan Agong, who is the Head of Islam and, thus, expected to safeguard the faith. He has the constitutional power to sign Bills into law, and to dissolve the Parliament. Even if the Parliament were to pass the repeal, the monarch has the power to block it. Moreover, as I said, even if the repeal passes both the parliament and the monarch, sodomy law will still stay in the Muslim courts which have jurisdiction on 60% of the population.
I wish to clarify that I am not opposing to Dr Kua, whose effort is much appreciated. I am merely explaining the difficulties in realising his mission. To summarise what the obstacles are:
1) Parliamentarians' votes
2) Monarch's assent
3) Muslim courts's repeal.
Even the first obstacle is prohibitive enough, not to mention the following two.
Should Dr Kua abort his campaign? No! Please continue with the fight. The least it can do is to increase awareness in the Malaysian public.
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