Tiada akses kepada keadilan bagi LGBT dalam sistem perundangan

Kes sebatan dua orang wanita di Terengganu pada 3hb September merupakan satu titik hitam yang traumatik bagi rakyat Malaysia, terutamanya individu LGBT dan golongan wanita.

Justice for Sisters telah mengikuti perkembangan kes ini sejak awal dan telah turut hadir di mahkamah pada 3 September sebagai pemerhati selain memberi sokongan kepada kedua-dua wanita tersebut. Walaupun tidak mengenali mereka, kami hadir sebagai tanda solidariti kerana kami yakin bahawa apa yang berlaku kepada mereka adalah satu bentuk penindasan. Tidak dapat dibayangkan segala tekanan dan kesukaran yang terpaksa dihadapi oleh mereka dalam mengharungi proses hukuman.

Antara isu yang dibangkitkan adalah kedua-dua wanita tersebut mempunyai tempoh 14 hari untuk membuat rayuan, namun sekiranya mereka tidak mempunyai akses kepada sokongan perundangan yang menjaga hak dan kepentingan mereka, bagaimana boleh mereka melakukan rayuan tersebut?

Menurut laporan Harian Metro pada Julai 2018, kedua-dua wanita mengaku tidak bersalah pada hari sebutan kes. Susulan itu, tarikh baru bagi sebutan semula kes ditetapkan untuk serahan dokumen dan lantikan peguam. Kedua-duanya diikat jamin dengan RM 3,000 seorang. Apabila seseorang itu tidak mengaku bersalah mereka dilepaskan dengan ‘bond’ mahkamah sebagai jaminan yang mereka akan menghadiri perbicaraan seterusnya.

Akses kepada sokongan perundangan adalah satu perkara yang sangat kritikal bagi semua orang, terutamanya individu LGBT dalam kes-kes sebegini. Mengikut pengalaman Justice for Sisters dalam memberikan sokongan perundangan kepada individu-individu LGBT, terutamanya individu transgender, kami dapati amat sukar sekali untuk mendapatkan khidmat peguam apabila hendak mempertahankan diri di mahkamah. Kami juga pernah berdepan situasi di mana individu-individu wanita transgender yang pada mulanya tidak mengaku bersalah terpaksa mengaku salah akibat ketiadaan peguam yang memahami dan menghormati anak guamnya, atau mampu memberi nasihat guaman yang betul.

Berdasarkan pengalaman kami, kedua-dua wanita tersebut yang pada mulanya tidak mengaku bersalah mungkin tidak dapat mencari peguam syariah untuk mewakili mereka lalu menukar pengakuan mereka kemudian.

Terdapat banyak perkara yang menafikan atau menidakkan keadilan bagi individu LGBT termasuk kesukaran untuk mendapat akses kepada peguam syariah yang menghormati hak kemanusiaan anak guamnya. Selain itu, individu LGBT juga mungkin tidak mendapat sokongan daripada kawan-kawan dan keluarga malah mengalami penyisihan, reaksi negatif serta tekanan daripada stigma masyarakat dan sensasi media massa.

Penting untuk dinyatakan bahawa bantuan kerajaan melalui Yayasan Bantuan Guaman Kebangsaan (YBGK) dan Jabatan Bantuan Guaman tidak memberi perkhidmatan peguam syariah secara percuma untuk kes-kes jenayah syariah. YBGK hanya menyediakan bantuan guaman bagi kes-kes sivil dan kes-kes cerai percuma untuk golongan berpendatan rendah.

Kedua, harus diingati bahawa bukan semua peguam, terutama peguam syariah, mahu mengambil kes berkenaan isu-isu LGBT. Realitinya agak mustahil untuk mencari peguam syariah untuk mewakili individu LGBT dan mempertahankan haknya. Justice for Sisters sendiri sudah banyak kali mengalami kesukaran dan buntu dalam cubaan mendapatkan peguam syariah yang berani mewakili kes-kes individu LGBT, dan pada masa yang sama menghormati identiti klien LGBT. Apabila peguam tidak menghormati identiti  anak guam mereka, ini meningkatkan lagi ketidakyakinan pada keadilan dalam sistem perundangan syariah di Malaysia.

Jika ada peguam yang sudi mewakili individu LGBT, nasihat guaman mereka selalunya adalah agar anak guam mereka mengaku bersalah supaya kes tidak berlarutan. Ada kalanya, sudah wujud prasangka dan prejudis terhadap individu LGBT sebelum menilai kes terlebih dahulu. Peguam-peguam syariah juga tidak terbuka kepada hujah dan dalil yang lebih progresif dan berasaskan prinsip-prinsip hak asasi manusia.

Artikel 5 dalam Perlembagaan Persekutuan Malaysia menetapkan bahawa setiap rakyat Malaysia mempunyai hak untuk dibela oleh peguam pilihannya. Adalah tidak memadai jika hak itu wujud sekadar tulisan teks dalam Perlembagaan. Justeru, kerajaan bertanggungjawab untuk memastikan akses kepada peguam bagi semua jenis kes di bawah mahkamah syariah.

Perlaksanaan hukuman sebatan

Sepertimana yang telah berlaku pada 3 September 2018, jam 10 pagi, dua orang wanita disebat 6 kali setiap seorang di depan khalayak. Hukuman itu dilaksanakan oleh pegawai Jabatan Penjara daripada Kajang dan Pengkalan Chepa.

Banyak yang perlu diteliti dalam kes ini. Pertama, walaupun hukuman dijatuhkan oleh Mahkamah Tinggi Syariah Terengganu, perlaksanaan sebat dikendalikan oleh pegawai Jabatan Penjara daripada Kajang, Selangor dan Pengkalan Chepa, Kelantan. Jabatan Penjara terletak di bawah kuasa kerajaan pusat. Persoalannya, apakah peranan kerajaan pusat dalam perlaksanaan hukuman tersebut?

Sebatan dan pengaiban terhadap kedua-dua wanita tersebut adalah zalim dan satu bentuk penyeksaan. Cara pengendalian kes mereka, bermula dengan penangkapan sehinggalah hari ni setelah hukuman dilaksanakan, amat tidak berperikemanusiaan. Mereka diaibkan begitu teruk sehingga video yang menunjukkan mereka diserbu media tersebar luas di media sosial. Malah istilah keji seperti ‘pasangan songsang’ digunakan oleh media untuk merujuk kepada mereka. Ada juga yang membuat perbandingan antara sebatan di penjara sivil dan sebatan mengikut syara’ tanpa memahami impak psikologi yang dialami kedua-dua mereka dan impak hukuman sebatan secara umum. Kesemua ini meningkatkan lagi trauma dan stigma terhadap mereka.

Ada pula pihak yang menyuarakan sokongan terhadap hukuman sebatan tersebut dengan menyatakan hukuman ini ialah satu bentuk rahmat daripada Allah. Kerajaan Negeri Kelantan dan Pahang kini juga bercadang untuk memperkenalkan hukuman sebat untuk individu LGBT di negeri masing-masing.

Kami bimbang dengan cara pemikiran sebegini. Masyarakat Malaysia harus memandang serius penerimaan dan normalisasi keganasan sebagai satu bentuk pengajaran dan rahmat dari Tuhan. Kita tidak boleh menjustifikasikan pengaiban, penyeksaan, dan keganasan di atas nama agama dan Tuhan. Pengaibkan dan kebencian terhadap kedua-dua wanita tersebut adalah perbuatan manusia yang lahir daripada perasaan prejudis. Ia bertentangan sama sekali dengan prinsip-prinsip yang diketengahkan semua agama yang menekankan keadilan sosial dan kasih sayang.

Sebagai masyarakat madani kita harus memastikan perkara ini tidak lagi berterusan. Kita haruslah menghentikan semua bentuk hukuman sebat kerana hukuman ini tidak berfaedah kepada sesiapa dan ternyata ia  adalah satu betuk penyeksaan semata-mata.

Wanita tak mengaku cuba lakukan seks sejenis https://www.hmetro.com.my/mutakhir/2018/07/355808/wanita-tak-mengaku-cuba-lakukan-seks-sejenis

 

Terengganu public caning marks one of the most degrading and cruel forms of sentencing in Malaysia’s history

KUALA TERENGGANU, 3 September — Malaysia’s first public caning held in a courtroom at the Terengganu Syariah High Court today marks a dark chapter in this nation’s history. The harsh sentence of six strokes carried out in a public courtroom demonstrated abhorrently little regard for the dignity of the two women who were sentenced under Section 30 and 59(1) of the Syariah Criminal Offences (Takzir Terengganu).

The caning proceeded despite huge protests by diverse actors in civil society, and clear recommendations by human rights and legal advocates to end the practice of whipping and caning in the criminal justice system as they are forms of cruel, inhumane or degrading treatment.

What transpired today was a spectacle executed in front of more than 100 attendees who gathered in the courtroom to witness the event. The women were hounded by the media the moment they arrived at the Terengganu Syariah High Court. Leading up to the execution, news circulated on social media with some parties calling on members of the public to attend the session in support of state action against the LGBT community. This included incitement by the state government agency, Institut Modal Insan Terengganu Sejahtera (i-MITS) for mass attendance as a sign of “anti-LGBT solidarity”.

The lead up to, and unfolding of this event, signal an alarming increase in the targeting of marginalised individuals. It also signals the state’s complicity in inciting public participation in violence, and the normalizing of violence as a form of education.

Presiding judge, Amarul Azmi, told the courtroom that the execution was intended as a reminder and deterrent to members of society. This was reiterated by the Terengganu executive councillor in charge of syariah implementation, Saiful Bahri Mamat, at a press conference later.

They added the execution was to demonstrate to the public how syariah caning is supposedly ‘kinder’ compared to caning executed under civil law. Remarks by the judges and state exco that the syariah caning is not intended to cause pain or harm the women is in direct contradiction to the degree of humiliation they faced today from the orchestrated spectacle, and the resulting psychological and emotional impact. The state’s actions here are responsible for the violence of the trauma, and humiliation caused on the two women as well as the society at large.

The caning was executed by officers from the Malaysian Prison Department, an agency under the federal Ministry of Home Affairs. Observing from the courtroom public gallery, it was evident that the strength of caning of the two women differed, as one person was clearly caned harder than the other.

State exco Saiful Bahri Mamat acknowledged there was noticeable discrepancy in the caning, but said issues surrounding the execution was under the jurisdiction of the Prison Department. This raises serious concerns regarding the uneven and unacceptable standards for accountability in the execution of justice under the syariah legal system and the legal justice systems in this country. .

Saiful said today’s execution should pave the way for future canings under syariah law. He did not rule out the use of public caning in other cases, and the sentence can be carried out in any location determined by the court as outlined by section 125 of the Syariah Criminal Procedure Enactment 2001.

The judge and the state exco emphasized that the two women had pleaded guilty and accepted the punishment, as they did not file an appeal within 14 days, indicating their sincerity and sense of repentance. It is vital to note that the two women had no legal representation, which grossly impacts on the protection of their right to fair trial and justice and the resulting long-term impact.

Despite this critical lack, the court proceeded with the execution which is now the most degrading and cruel form of public sentencing in Malaysia’s history. LGBT persons have limited access to redress and justice. Finding a syariah lawyer for LGBT-related cases is extremely challenging. This is compounded by other factors including lack of family support, social stigma and lack of resources due to multiple forms of discrimination.

This case demonstrates multiple failures in the justice system, the complicity and intention by the state to target and persecute already marginalised members of the community, and to create conditions for public acceptance of violent and humiliating treatment cloaked in the ironic language of ‘kindness’ and ‘compassion.’ It sets a dangerous precedent for the increased policing of morality and sexual identities in Malaysia. We call on all members of the Malaysian public to unequivocally reject such a violent trajectory.

We further call on our elected leaders to take immediate and committed action to end and eliminate all forms of state-sanctioned moral policing, erosion of fundamental rights and freedoms, and to cease the cruel, inhumane and degrading practice of whipping and caning in the criminal justice system. The recognition and protection of human dignity is a fundamental principle enshrined in the Federal Constitution, widely ratified human rights instruments, as well as in all religions. There is no justification for the deliberate humiliation, harm and degradation that took place in the Terengganu Court today.

 

  • ENDS//

 

Statement by

Justice for Sisters, LGBT groups and individuals in Malaysia

3 Sept 2018

Press contact:
thilaga: justiceforsisters@gmail.com

 

Does New Malaysia Mean All of Us Without Exception?

On 9 May this year, Malaysians did the unthinkable when they unseated Barisan Nasional, the only political coalition to ever govern the country. Corruption in government had become endemic, ethnic and religious tensions overbearing, laws increasingly repressive. Having had enough of it all, people from all walks of life chose instead Pakatan Harapan, the coalition that promised hope, change and inclusion for everyone. So historic was the outcome of the 9 May general election that it was given the epithet ‘Malaysia Baru’ (New Malaysia).

Familiar wounds for LGBT people

Three months have passed since then, and many marginalised communities are left wondering when the promised change will come. The LGBT community, long persecuted by the previous regime, has not received any respite in Malaysia Baru. Merely weeks into his job, an aide to the newly minted Minister of Youth and Sports was forced to resign when opposition supporters hounded him on social media over his sexuality. His employers, the government, chose not to defend him. Soon after that, two LGBT activists had their portraits removed from a photography exhibition in Penang on the instruction of the new Minister of Islamic Affairs.

Following these events, which were widely reported in the media and fiercely debated on social media, a trans woman in Negeri Sembilan was assaulted by a gang of eight men with wood and pipes. A bar in Kuala Lumpur was then raided by the Federal Territories Religious Department (JAWI), an ‘old Malaysia’ type operation that was defended by the Minister of Federal Territories. In between all these incidents, LGBT people are told over and over again they cannot have the same rights and protection as others in Malaysia–and can only exist in private spaces, leaving LGBT people with no legitimate recourse against the forceful ‘guidance’ of religious authorities.

“The increasing hostility towards our community didn’t come out of sudden. It is a manifestation of decades of neglect and oppression, as well as denial of identity and rights by religious elites and the government. How much violence needs to happen before we do anything to stop this?” states Numan Afifi, community organiser on LGBT and youth rights.

All of this happened within the 100 days of the new administration. And as the fireworks flare this weekend for the country’s first Independence celebration in this new political era, two young women await caning by the Syariah court in Terengganu. The women were detained by religious authorities in April this year and charged for “attempting to have sex”. They were each fined RM3,300 and face six strokes of the rotan (cane). Despite promises to uphold human rights in Malaysia Baru, this inhumane sentence remains imminent for the two women.

“This climate makes LGBT communities feel helpless and threatened, especially with the increase of hate crimes and discriminatory comments. This sentence will only encourage perpetrators and aggressors to continue their hostility, violence and acts of aggression towards the community. Besides that, the recent events will increase Islamophobia and misconceptions regarding Islam among Malaysians, which is already at a worrying state,” says Chong Yee Shan, human rights activist from Diversity Malaysia.

Continued inhumane and discriminatory form of sentencing against LGBT persons

There are many long-standing questions surrounding the Terengganu case: Should these women even be subjected to such cruel, degrading and inhumane punishment just to be made examples of to others? Did these women have access to legal counsel or aid? Where will the sentence be executed? Will it be carried out in a federal prison? And if so, can the federal authority execute a sentence of caning against a Muslim woman when the Prison Regulations 2000 forbids corporal punishment to be applied to a female prisoner (of any age)? What does this punishment mean in this current state of alarming rhetoric, discrimination, violence against LGBT persons?

Secretary General of PROHAM (Society for the Promotion of Human Rights) Ivy Josiah states, “Caning and whipping must be erased in both the Penal and Syariah Codes as a form of punishment as it against the grain of any religious and human rights principle that the preservation of human dignity is paramount. Otherwise the government’s recent announcement that it will accede to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment appear feeble and insincere. Furthermore, Parliament must put an end to the inconsistency and answer this legal question: Can a federal authority execute a sentence of whipping against a Muslim woman when the Prison Regulations 2000 forbids corporal punishment to be applied to a female prisoner (of any age), or a male prisoner who is more than 50-years-old?”

This issue has also been raised by the CEDAW Committee in its recommendation to the government of Malaysia in the March 2018 review. The Committee called on the government to “[h]armonize Syariah law with section 289 of the Criminal Procedure Code to prohibit the whipping of women as a form of punishment;” (para. 24 (e), CEDAW/C/MYS/CO/3-5).

The Terengganu case will be the first time such a harsh punishment is meted out against women since the May general election, in less than six months since this recommendation was received.

“Since the new government, I have noticed increased oppression targeting LGBT persons done in the name of religion. This severe sentence violates the rights of women and is against the Federal Constitution of Malaysia. It should not exist in this era of New Malaysia. This is not only about the caning of the two women who are accused for their sexual orientation, but about violations against humanity and oppression towards another human being,” states transgender rights activist, Nisha Ayub.

The Malaysian Bar Council stated their unreserved opposition to caning and corporal punishment in a recent press statement on this issue, and further notes that this is “a harsh and barbaric form of punishment that causes harmful and long-lasting psychological effects, and has no place in a modern and compassionate society such as ours.” They further call for an “immediate moratorium against all forms of corporal punishment, and to repeal provisions for such punishment in all legislation.”

Caning was executed against a woman for the first time in Malaysia in 2010 under the previous Najib Razak administration, which it did in secrecy and only announced a few days after the fact. This raises concerns over the arbitrary procedures of the Syariah courts and reinforces the widespread belief that Islam discriminates against women. The judge noted that the punishment was meant “to educate and make offenders realize their mistakes and return to the right path.” A similar rationale of setting an example to the larger public was cited in this case during the sentencing. It is reasonable to conclude that women voluntarily submit to caning because they are shamed into submission.

“The only lessons this sentence will send are that it is okay to punish people for being different, to cane adult women for loving each other, to criminalise something that harms nobody, or for the State to tell adults what we can do with our own body. The lessons it will send to the LGBT community is that we don’t belong, we are criminals, we should hide and pretend. But some of us are tired of hiding and pretending. We are not criminals. We are your family members, we are Malaysians, and we belong here as much as the rest, just trying to get by, contribute where we can, find some happiness when we can. I wish Malaysia would stop teaching lessons of hate and division. We should teach lessons of love, respect and equality instead,” states Pang Khee Teik, LGBT rights advocate and co-founder of Seksualiti Merdeka.

Fulfill the commitment of change towards human rights for all

In a memorandum to the Prime Minister and Attorney General on this case, the Joint Action Group for Gender Equality (JAG) urges the government “to review whipping as a form of punishment as it violates international human rights principles which regard whipping and other forms of corporal punishment as cruel, inhuman and degrading treatment.” JAG further notes that “the LGBT are a convenient target to ramp up the Islamic conservative sentiments,” and calls for the new government to “show the political will and courage to once and for all deal with the implications of such intrusive moral policing laws.”

The 2018 COMANGO report endorsed by 52 Malaysian NGOs calls for the government to “eliminate all forms of cruel, inhuman or degrading treatment or punishment in the criminal justice system including the practice of whipping and caning,” and to ratify and accede to the UNCAT as part of this commitment.

Professor Gurdial Singh from the National Human Rights Society (HAKAM) also affirms this in a letter to the new Foreign Minister. “Given this initiative,” he said, “it is appropriate and timely that the government announces an immediate moratorium on all forms of caning whether related to Penal Code or Syariah Criminal Offences.” He added that the moratorium on caning will indicate an assured commitment and a necessary first step towards preventing any form of torture by the state.

This resonates with Pakatan Harapan’s commitment in its manifesto “to make our human rights record respected by the world” (Promise 26), as well as with Prime Minister Mahathir Mohamed’s Independence Day speech guaranteeing “justice for all the people, irrespective of race or religion” and promising “Malaysia will remain strong and progressive whatever the differences, contradictions and suspicions that may arise.”

Malaysia Baru is meaningless without real transformation. This requires courage and commitment by all of us, including those in power. We all have a role to play when a segment of society is being treated unfairly. It is incumbent upon our elected leaders to lead the way in ensuring that the fundamental liberties enshrined in the Federal Constitution guarantee protection for all Malaysians. This in itself should be all the protection we need. Instead, we find ourselves wondering about the well-being of two young and anxious women.

“We should not need to justify our human rights. The two women likely did not have access to reliable and good counsel for their defence. That alone is a travesty of justice no matter the moral ‘rationale’ for the criminalisation of personal sins under Syariah. We have witnessed the denial of access to justice for many others as well. It is time ‘New Malaysia’ stops such injustices if we are indeed in an era of hope,” states Angela M. Kuga Thas, co-founder of KRYSS.

We are people first, worthy of dignity and respect. It is time our communities and our country take a step forward and affirm that ‘New Malaysia’ means all of us, without exception.

Statement by

LGBT groups and individuals in Malaysia

2 Sept 2018

Caning for consensual sex acts is a form of torture against lesbian women

Immediately review the court decision and cease implementation of caning

We strongly condemn the punishment meted out by the Terengganu Syarie judge Kamalruazmi Ismail on 12 August 2018 in the case of two women who were convicted for attempted sexual relations. The two women were sentenced to RM 3,300 in fines and 6 strokes of caning. The sentencing of the two women in Terengganu is a gross violation of their dignity and human rights as guaranteed by the Federal Constitution, international human rights treaties that Malaysia has ratified and international laws.

The judge fixed 28 August 2018 to carry out the caning sentence, and both women were released on bail for RM 1,500 with two bailors. The two can also be imprisoned for 4 months should they fail to pay the RM 3,300 fine. The two women arrested in April 2018 in Terengganu were convicted under Section 30 of the Syariah Criminal Offences (Takzir Terengganu) read together with Section 59(1).

The erroneous and prejudicial sentences meted out by the Terengganu Syarie judge Kamalruazmi Ismail amounts to torture. Article 1 of the Convention Against Torture defines torture as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes … or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’[1] In other words, punishment based on discrimination by any public official that results in suffering, mentally or physically is defined here as a form of torture.

The arbitrary arrest and the punishment meted out for consensual sex between adults violate multiple human rights under the Universal Declaration of Human Rights (UDHR), including Article 1 (the right to live with dignity), Article 5 (the right to be free from cruel, inhuman and degrading treatment and punishment), Article 12 (right to privacy), Article 13 (freedom of movement).

In the context of Malaysia, the punishments are also violations of the rights enshrined under the Federal Constitution of Malaysia, including Article 5 that protects the right to life and liberty, Article 8 that guarantees equality and non-discrimination based on gender, and Article 9 that guarantees freedom of movement.

The judge was also quoted as saying. “adequate punishment must be meted out so that this becomes a lesson and reminder to not just the two of you, but the members of society.” The role of the court is to ensure justice is served and upheld, not to increase victimisation of persons based on personal prejudice. Punishment cannot be used as lessons for society. Punishment as a means to serve as lessons for others unfairly exploits and burdens the individuals with severe punishments as stand-ins for others. Such prejudicial thinking can dangerously allow for the abuse of power and exploitation of innocent people, perpetuating injustices.

Criminalization of consensual sex between adults is a gross violation of human rights, and Malaysia has been called to review and repeal laws that criminalise LGBTQ persons based on consensual sexual acts in many international human rights fora. Consensual sex acts between adults is not a crime.

The CEDAW committee in its concluding observations to Malaysia in March 2018 called Malaysia to “amend all laws which discriminate against LBTI women, including the provisions of the Penal Code and Syariah laws that criminalise same-sex relations between women and cross-dressing”.

We call for the implementation of the sentence to be reviewed and revoked immediately. We call for SUHAKAM and the Ministry of Women, Family and Community Development to immediately intervene and stop the implementation of the punishments. We are extremely concerned about the impact of the punishment not only on the two women, but also on the LGBTQ population as a whole.

We are also extremely concerned about the escalating attacks and repression against LGBTIQ persons in Malaysia, and the impact of such punishment in this environment. Such punishment will further fuel hatred, discrimination and violence towards LGBTIQ persons with impunity. The new government has repeatedly affirmed that LGBTIQ Malaysians are protected as citizens under the Federal Constitution. This case calls for Pakatan Harapan to protect, promote and fulfill the rights of all persons, including LGBTIQ persons. We call the Pakatan Harapan government to immediately intervene in this matter, and end victimisation and torture against the two women in this case.

Endorsed by:

  1. Justice for Sisters
  2. Knowledge and Rights with Young people through Safer Spaces (KRYSS)
  3. All Women’s Action Society (AWAM)
  4. SAWO (Sabah Women’s Action Resource Group)
  5. Association for Women Lawyers (AWL)
  6. Pelangi Campaign
  7. Persatuan Sahabat Wanita Malaysia
  8. PLUsos
  9. PLUHO, People Like Us Hangout!
  10. Malaysian Atheists and Secular Humanists (MASH)

References:

Pasangan lesbian didenda, disebat, 12 August 2018, Sinar Harian

http://www.sinarharian.com.my/edisi/terengganu/pasangan-lesbian-didenda-disebat-1.867672

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment https://www.ohchr.org/en/professionalinterest/pages/CAT.aspx

Seksyen 30. Musahaqah.

Mana-mana orang perempuan yang melakukan musahaqah adalah melakukan suatu kesalahan dan apabila disabitkan boleh didenda tidak melebihi lima ribu ringgit atau dipenjarakan selama tempoh tidak melebihi tiga tahun atau disebat tidak melebihi enam sebatan atau dihukum dengan mana-mana kombinasi hukuman itu.

Section 30. Musahaqah.

Any female person who commits musahaqah shall be guilty of an offence 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 whipping not exceeding six strokes or to any combination thereof.

Seksyen 59. Percubaan.

(1) Mana-mana orang yang cuba-

(a) melakukan sesuatu kesalahan yang boleh dihukum di bawah Enakmen ini atau di bawah mana-mana undang-undang bertulis lain yang berhubung dengan Hukum Syarak; atau                    (b) menyebabkan kesalahan itu dilakukan,

dan dalam percubaan itu melakukan apa-apa perbuatan ke arah pelakuan kesalahan itu hendaklah, jika tiada peruntukan nyata dibuat oleh Enakmen ini atau undang-undang bertulis lain itu, mengikut mana-mana yang berkenaan, bagi hukuman percubaan itu, dihukum dengan apa-apa hukuman yang diperuntukkan bagi kesalahan itu.

(2) Apa-apa tempoh pemenjaraan yang dikenakan sebagai hukuman bagi suatu percubaan untuk melakukan suatu kesalahan atau untuk menyebabkan suatu kesalahan dilakukan tidak boleh melebihi satu perdua daripada tempoh maksimum pemenjaraan yang diperuntukkan bagi kesalahan itu.

Section 59. Attempt.

1) Any person who attempts-

(a) to commit an offence punishable under this Enactment or under any other written law relating to Hukum Syarak; or

(b) to cause such an offence to be committed,

and in such attempt does any act towards the commission of such offence, shall, where no express provision is made by this Enactment or by such other written law, as the case may be, for the punishment of such attempt, be punished with such punishment as is provided for the offence.

(2) Any term of imprisonment imposed as a punishment for an attempt to commit an offence or to cause an offence to be committed shall not exceed one half of the maximum term provided for the offence.

 

LGBT activists: Silence and censorship perpetuate discrimination and hate

A joint statement by LGBT human rights activists and groups

We welcome the timely meeting between Minister in the PMO Mujahid Rawa and Nisha Ayub on 11 August 2018. The meeting was a crucial and positive first step in showing the government’s openness to dialogue and to create a Malaysia that is inclusive and compassionate. This dialogue is significant as many in Malaysia are not aware of the extent to which transgender persons in Malaysia live with daily experiences of stigma, discrimination, and violence.

The lack of open channels and opportunities to hear LGBT people is in fact what perpetuates the misunderstanding towards people of diverse sexual orientation, gender identity and expression, and sex characteristics. The stigma, discrimination, and violence experienced by transgender people have been well documented in multiple reports, including a report by the Human Rights Watch titled “I’m Scared to Be a Woman”.

Nonetheless, we wish the Minister had met with us before he gave the instructions to remove Nisha Ayub and Pang Khee Teik’s portraits from an exhibition at the George Town Festival. Had the Minister met us earlier, he would have understood the intentions of Nisha Ayub and Pang Khee Teik for agreeing to be photographed for this exhibition, and not simply accuse them of ‘promoting LGBT activities’. He could also have avoided some of the harmful stereotypes and misconceptions about LGBT activists that he said during the press conference following the dialogue.

The attempt to define and classify LGBT activists on our behalf is divisive, problematic, and unhelpful. The government has the duty to respect and protect the human rights of all human rights defenders, and create an enabling environment for the promotion, protection and fulfilment of human rights.

Nisha Ayub is regarded as a respected human rights defender not only in Malaysia, but also globally. Nisha is a Malaysian icon given her immense contribution to human rights. Nisha became an activist after having been subjected to multiple forms of violence based on her gender identity, including arbitrary arrest, detention and imprisonment; misgendering and shaming; hateful, degrading, and violent comments and threats. As an activist, she further experienced multiple forms of erasure and exclusion from Malaysia’s history and narratives, as evidenced by the act of removing her portrait from a celebration of Malaysian patriotism. Amidst the portrait debacle and its ensuing events, she has been receiving an increasing volume of hateful, degrading and violent messages and threats.

Despite Mujahid Rawa’s limited jurisdiction, the call for removal of the portraits also directly affected Pang

Khee Teik, a human rights defender and arts organiser. Like Nisha, Pang had also received thousands hateful and violent comments online. Therefore, we also call Mujahid Rawa to also meet Pang, in order to understand the overarching impact of the state’s policies on all persons regardless of religious background. Pang, in his activism, has attempted to make visible the discrimination, violence and marginalisation faced by LGBT persons. For this he has received public vilification, investigation by the state, loss of employment, and hateful comments and threats, amongst others.

Comments that incite violence and fear of personal safety and security are unacceptable. In the past, the government were silent on the attacks against LGBT persons and in some cases subjected the victims to further persecution. Therefore, we welcome the Minister’s call for no discrimination towards the trans community.

We also acknowledge the homophobic and transphobic reactions of the public towards Mujahid and his statement. This underscores our view that people regardless of their gender identity and sexual orientation, can be subjected to transphobia, homophobia and discrimination due to their association with transgender or LGBTIQ persons.

We also urge Malaysians to please listen to LGBT people, to give an opportunity for us to tell you our side of the story, and to stop hateful, degrading and violent comments. These comments have a severe impact on the well-being, safety and security of not just people that are targeted, but the whole LGBT population. In fact, they also create an environment which encourages and overlooks bullying, blackmail, emotional, physical and sexual violence, and other criminal acts carried out towards LGBT persons by various people, including family members. The pervasive level of stigma and discrimination also hinders LGBT from accessing healthcare services, justice, and other fundamental rights. The public does not hear about these because LGBT people have been silenced and erased. Furthermore, those of us who face threats do not feel safe to share our stories.

People who insist that LGBT people are not discriminated in Malaysia make such assumptions precisely because we have not been allowed to talk about our experiences. We encourage people to learn and educate themselves about gender identity and sexual orientation, and to talk to us.

We believe openness and dialogue can have transformative effects. In the spirit of openness, healing and compassion, we call for all relevant government Ministries to meet with LGBT human rights groups. Together we hope to promote a kinder, more compassionate, more democratic Malaysia.

End

LGBT human rights groups of Malaysia

 

LGBTIQ: We are the experts of our lives

End all harmful policies and practices towards LGBTIQ persons

We, the undersigned, are concerned by the perpetuation of harmful policies and practices on lesbian, gay, bisexual, transgender and queer (LGBTQ) persons and related issues by the Prime Minister’s Department (religion).

These policies and practices, a continuation of those introduced by the previous administration, are centered on prevention; rehabilitation or treatment; and enforcement of laws. Not only are they non-evidence- and non-rights-based, but these policies and practices are also harmful and result in adverse impacts, which further exacerbate the discrimination, violence, victimization and marginalization experienced by LGBTIQ persons. More importantly, present practices and policies fail to address the urgent and actual issues faced by LGBTIQ persons: criminalization, discrimination, marginalization, and hate crimes and violence.

In several statements made by Dato’ Mujahid Yusof Rawa, Minister in the Prime Minister’s Department (religion), he emphasized that as citizens LGBTIQ persons are entitled to their constitutional rights, which must be protected. Despite this affirmation by the Minister, LGBTIQ persons have yet to enjoy the full effects of these rights.

Post GE-14, LGBTIQ persons have been subjected to multiple forms of discrimination and violence: This includes, among other things:

  • doxxing or dissemination of personal information or photos without consent;
  • hateful and violent messages and threats;
  • boycott campaigns;
  • increased vulnerability of being reported to enforcement agencies;
  • increased threats of prosecution and legal action,
  • vilification and demonization in the media.

People associated with LGBTIQ persons have also been subjected to discrimination, intimidation and violence, including hateful and violent messages for supporting the human rights of LGBTIQ persons, doxxing and being reported to enforcement agencies. There have been no serious efforts to address the wave of homophobia and transphobia post GE-14.

Rehabilitation, treatment and efforts to change sexual orientation and gender identity

The existing approach used by the Prime Minister’s Department (religion) is based on a three-pronged strategy: prevention; rehabilitation or treatment; and enforcement of laws. Rehabilitation, treatment or efforts to change sexual orientation and gender identity of LGBTQ persons are widely discredited by global health organizations and human rights bodies due to its harmful and long-term impacts.[i]

In 2009, the American Psychological Association (APA) issued a report concluding that the risks of conversion therapy practices include: depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidal tendencies, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, amongst others.

A Report of the Special Rapporteur on torture and other cruel, inhumane or degrading treatment or punishment released in 2013 views conversion or reparative therapies as a form of torture and explicitly calls ‘all States to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, involuntary sterilization, unethical experimentation, medical display, “reparative therapies” or “conversion therapies”, when enforced or administered without the free and informed consent of the person concerned.”[ii]

In June 2018, the World Health Organisation’s (WHO) eleventh revision of the International Classification of Diseases (ICD-11) removed of all trans-related diagnoses from the mental disorders chapter as ‘evidence is now clear that it is not a mental disorder, and indeed classifying it in this can cause enormous stigma for people who are transgender. There remain significant health care needs that can best be met if the condition is coded under the ICD.’ Gender incongruence is now reclassified under sexual health conditions in the ICD-11.[iii] Homosexuality was removed as a mental disorder in 1970 from the ICD.

Some countries are also moving in the direction to ban conversion therapy, as it is a harmful practice. Malta[iv][v] and parts of Canada[vi] and the United States[vii] have banned or regulated the practice of conversion therapy.

We believe that people should be able to understand and come into their gender identity and sexual orientation in an affirming environment. Should people choose to be heterosexual, it should be based on self determination, and not compulsion, sense of gratitude, due to incentives, amongst others. Plenty of evidence continues to affirm that gender identity and sexual orientation is a spectrum, which includes heterosexual and cisgender persons. The spectrum does not erase identities, instead it affirms and celebrates the diversity of humanity.

We are also concerned by the so-called “experts” engaged by the Prime Minister’s Department (religion). We emphasize that LGBT persons are the experts of our lives. Policies regarding LGBTIQ persons should be made in consultation with LGBTIQ persons, who are directly affected by these policies. We are concerned that the government is engaging with groups that promote the rehabilitation and criminalization of LGBTQ persons, instead of groups that uphold the human rights of LGBTIQ persons.

Impact of the government current policies and practices

The government’s overall approach towards LGBTIQ persons will result in negative socio-economic and health impacts and be costly not only for LGBTIQ persons, but also the government. This includes economic marginalization, increased health risks, migration and brain drain, increased violence and hate crime, amongst others.

Decriminalization and elimination of discrimination have been proven to be effective strategies all around and have had positive impacts in multiple areas. This includes increased quality of life, reduction of HIV prevalence rates,[viii] boost to the economy,[ix] amongst other things. The current uninformed practices and policies leave behind LGBTIQ persons, thereby hindering Malaysia’s  ability to achieve the Sustainable Development Goals.

As stated by Dato’ Mujahid, LGBTIQ persons are citizens and their constitutional rights must be protected. As such, LGBTIQ persons have the right to live dignity and to be free from all forms of discrimination, harm and violence.

These policies and practices violate Article 5 of the Federal Constitution, which guarantee a person’s personal liberty and the right to live with dignity; Article 8, which prohibits gender based discrimination; Article 10, which protects freedom of speech, assembly and association; and Article 9 on freedom of movement.

In 2018, the CEDAW Committee in its Concluding Observations to Malaysia recommended that Malaysia “expedite measures to discontinue all policies and activities, which aim to ‘correct’ or ‘rehabilitate’ LBTI women” and “amend all laws which discriminate against LBTI women, including the provisions of the Penal Code and Syariah laws that criminalize same-sex relations between women and cross-dressing.”[x]

We call on the government to:

  1. End the allocation of funds to harmful and non-evidence- and non-rights-based programmes, including rehabilitation and treatment programmes that target LGBTIQ persons and seminars that increase misinformation regarding LGBTIQ persons;
  2. End implementation of the ‘Pelan Tindakan Menangani Gejala Sosial Perlakuan (LGBT)’,[xi] a 5-year government action plan to address social ills (LGBT);
  3. Meaningfully engage with human rights-based LGBTIQ groups of diverse backgrounds, including ethnicity and religion;
  4. Establish a working group between the Prime Minister’s Department (religion) and human rights-based LGBTIQ groups to ensure the assistance provided to transgender persons are not conditional, and that government programmes are evidence- and rights-based to address the systemic discrimination experienced  by LGBTIQ persons.

This is a joint statement by

  1. Justice for Sisters
  2. Diversity
  3. PLUsos
  4. PLUHO
  5. QUASSA
  6. PELANGI Campaign
  7. Transmen of Malaysia
  8. PT Foundation
  9. Malaysian Atheists and Secular Humanists (MASH)
  10. The Malaysian Feminist (TMF)
  11. Center for independent Journalism (CIJ)

 

References

[i] WPA Position Statement on Gender Identity and Same-Sex Orientation, Attraction, and Behaviours http://www.wpanet.org/detail.php?section_id=7&content_id=1807

[ii] The Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf

[iii] ICD-11, Classifying disease to map the way we live and die http://www.who.int/health-topics/international-classification-of-diseases

[iv] PRESS RELEASE BY THE MINISTRY FOR SOCIAL DIALOGUE, CONSUMER AFFAIRS AND CIVIL LIBERTIES: Another step forward in civil liberties…Malta criminalises conversion practices and depathologises sexual orientation, gender identity and gender expression https://www.gov.mt/en/Government/Press%20Releases/Pages/2016/December/05/pr162780.aspx,

[v] AFFIRMATION OF SEXUAL ORIENTATION, GENDER IDENTITY AND GENDER EXPRESSION ACT http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=12610&l=1

[vi] Affirming Sexual Orientation and Gender Identity Act, 2015 https://www.ontario.ca/laws/statute/S15018

[vii] Conversion therapy and youth https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf

[viii] criminalising homosexuality and public health: adverse impacts on the prevention and treatment of HIV and AIDS http://www.humandignitytrust.org/uploaded/Library/Other_Material/Criminalising_Homosexuality_and_Public_Health.pdf

[ix] the relationship between LGBT inclusion and economic development: an analysis of emerging economies, November 2014 https://williamsinstitute.law.ucla.edu/wp-content/uploads/lgbt-inclusion-and-development-november-2014.pdf

[x] Concluding observations on the combined third to fifth periodic reports of Malaysia https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/MYS/CO/3-5&Lang=En

[xi] https://www.facebook.com/MyJakimMalaysia/posts/1588691407848089, https://islam.gov.my/berita-semasa/34-bahagian-keluarga-sosial-komuniti/48-pelan-tindakan-menangani-gejala-sosial-kecelaruan-gender

 

Stop censoring us: LGBT people are part of the Malaysian picture

We, the undersigned, are extremely appalled and disturbed by the arbitrary order issued by Datuk Mujahid Rawa, Minister in the Prime Minister’s Department for Religious Affairs to remove portraits of Nisha Ayub and Pang Khee Teik, two human rights defenders (HRD) from the Stripes and Strokes exhibition at the George Town Festival (GTF) 2018 in Penang. The portraits were removed on 7 August 2018, as the photos were deemed to promote LGBT activities. The exhibition showcases people of diverse backgrounds with the Malaysia flag showing their love and pride for Malaysia.

Mujahid added that the he was informed that the exhibition that “showcases pictures labelled LGBT activists and they were portrayed with the rainbow pride logo”. Mujahid also noted that promotion of LGBT activities was not ‘in line with the new government’s policy’.

The order to remove the portraits was arbitrary and unconstitutional, as it violates multiple rights under the Federal Constitution. This includes Articles 5 and 8 of the Federal Constitution, which guarantee the right to live with dignity and freedom from gender-based discrimination. Article 10 of the Federal Constitution protects the freedom of expression, association and assembly of all persons regardless of sexual orientation and gender identity.

In addition, Muhajid must also clearly cite the policies that are used to remove the portraits, instead of vaguely and arbitrarily stating that the photos are not in line with the new government’s policy. The Federal Constitution exists to ensure that there will be no tyranny of the majority over marginalized groups and people.

As Mujahid has stated on multiple occasions, LGBTIQ persons are citizens and their human rights are protected under the Federal Constitution. As such, this protection must extend to all areas, and not just selective areas the Pakatan Harapan administration is comfortable with.

The removal of the portraits of the two activists also effectively restricts human rights defenders from carrying out their activism and work. The Declaration on Human Rights Defenders explicitly outlines the duties of the state in promoting, fulfilling and protecting the rights of human rights defenders and creating a conducive environment for the promotion of human rights.

The CEDAW Committee in its concluding observations to Malaysia in March 2018 also noted its concern over reprisals and restrictions faced by women human rights defenders, in particular those advocating for Muslim women’s rights, the rights of lesbian, bisexual, transgender and intersex women, as well as for democratic reforms. The Pakatan Harapan administration as the present day government has the obligation to implement the concluding observations and recommendations by the CEDAW Committee.

We also question the purview of the Prime Minister’s Department for Religious Affairs and its Ministers. It appears as if all LGBTIQ related issues have been placed under the Prime Minister’s Department for Religious Affairs. The Department’s approach on LGBTIQ issues focuses on “prevention, rehabilitation and treatment as well as the enforcement of laws” have been heavily criticized for not being evidence and rights based, and for its harmful and discriminatory impacts to Malaysian citizens. We are concerned the policies and practices adopted by the Prime Minister’s department on LGBTIQ persons will further regress the human rights of of all persons, in particular LGBTIQ persons.

Post GE-14, there has been an increase of discrimination, threats and violence towards LGBTIQ persons and allies of LGBTIQ persons. As reported by Nisha and Pang on their respective social media platforms, their photos received thousands of hateful and violent threats and messages, including threats of rape, death and torture. We are concerned the removal of the photos completely misses the actual issues that needs to be addressed – the increasing discrimination, threats and violence against LGBTIQ persons. Moreover, this act of censorship and restriction will only embolden those who hold anti-LGBTIQ views and increase discrimination and violence against LGBTIQ persons and allies with impunity.

We call the Pakatan Harapan administration to engage LGBTIQ human rights groups and uphold its obligations in protecting, fulfilling and promoting the rights of all persons, especially persons and groups that are marginalized and stigmatized. We believe LGBTIQ persons are integral to Malaysia’s inclusion of all forms of diversity.

Source:

  1. https://www.malaymail.com/s/1660351/mujahid-i-ordered-removal-of-portraits-from-gtf-exhibit-no-promotion-of-lgb

Endorsed by

  1. Agora Society
  2. Aliran Kesedaran Negara (Aliran)
  3. All Women’s Action Society (AWAM)
  4. Association of Women Lawyers ( AWL )
  5. BEBAS
  6. Centre for Combating Corruption and Cronyism (C4)
  7. Centre for Independent Journalism, Malaysia
  8. Community Action Network (CAN)
  9. Diversity
  10. ENGAGE
  11. In Between Cultura
  12. Imagined Malaysia
  13. Johor Yellow Flame (JYF)
  14. Knowledge and Rights with Young people through Safer Spaces (KRYSS)
  15. Justice for Sisters
  16. KL & Sel Chinese Association Women Division
  17. KL & Sel Chinese Association Youth Section
  18. Lingkaran Islam Tradisional (LIT)
  19. Malaysia Design Archive
  20. Malaysia Muda
  21. Malaysian Atheists and Secular Humanists (MASH)
  22. Monitoring Sustainability of Globalisation
  23. National Human Rights Society of Malaysia (HAKAM)
  24. Neighborhood Performance Group
  25. North South Initiative
  26. Parti Sosialis Malaysia
  27. PELANGI Campaign
  28. Penang Heritage Trust
  29. Penang Forum
  30. Pergerakan Tenaga Akademik Malaysia (GERAK)
  31. Persatuan Kesedaran Komuniti Selangor (EMPOWER)
  32. Persatuan Sahabat Wanita Selangor (PSWS)
  33. PLUHO, People Like Us, Hang Out!
  34. PLUsos
  35. Projek Dialog
  36. Project Liber8
  37. PT Foundation
  38. Pusat KOMAS
  39. Queer Academics, Students and Supporters Alliance (QUASSA)
  40. Ruang Kongsi
  41. Sabah Women’s Action Resource Group (SAWO)
  42. Sisters in Islam, SIS
  43. Society for the Promotion of Human Rights (PROHAM)
  44. SUARAM
  45. Tenaganita
  46. Transmen of Malaysia
  47. UMANY
  48. Writer Alliance for Media Independence (WAMI)
  49. Women’s Aid Organisation (WAO)
  50. Women Development Organisation of Malaysia