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.