We, the undersigned human rights groups, are deeply concerned over the statement by Ahmad Marzuk Shaary, Deputy Minister at the Prime Minister’s Department (Religious Affairs), following a special task force meeting to address LGBT issues facilitated by the Department of Islamic Development Malaysia (JAKIM). The meeting was attended by the Ministry of Communications and Multimedia, Home Ministry, Malaysian Multimedia and Communications Commission (MCMC), and Royal Malaysian Police (PDRM).
In the statement, the Deputy Minister stated that the task force will:
- Identify problems and constraints faced by authorities in implementing integrated enforcement;
- Propose amendments to the Syariah Criminal Procedure (Federal Territories) Act 1997 (Act 560) and the state Syariah Procedure Enactments to allow enforcers to act against Muslim persons who insult Islam and commit Syariah offences by using network facilities, services and applications; and
- Develop a comprehensive Standard Operating Procedure (SOP) or guideline on procedures to deal with offences in relation to insult of religion and promotion of LGBT lifestyle.
This memorandum outlines both the concerns with the proposed amendments as well as the problematic and arbitrary methodology used for implementation, the impact on LGBTIQ persons and businesses, the infringement and violation of multiple rights enshrined in the Federal Constitution and international human rights standards, and how they contribute to religious extremism in Malaysia.
Given the magnitude of harm of the proposed amendments on all persons, the state must cease all plans to move ahead with the amendments.
Moreover, we are also concerned that prevailing anti-LGBT sentiments by the authorities will be used as a pretext to push through these amendments and bypass responsible law making processes. The State has a duty to explain the full extent and impact of the proposed amendments on all persons before proposing and tabling such amendments. Members of Parliament must call for a cost-benefit analysis and a human rights assessment of the proposed amendments, and insist on public consultations to fully explain the extent of the proposed amendments if the legislature were to proceed with the tabling of the proposed amendments when Parliament reopens.
At a time when Malaysia should be focused on the post-pandemic recovery process, it’s decision makers must focus on legislative amendments that serve and benefit everyone, without further marginalising communities that are already vulnerable.
Proposed amendments on state Syariah Procedure Act and Enactments violate Federal Constitution
The proposed amendments come after the Federal Court decision on the Selangor state’s competency to enact Section 28 of the Selangor Syariah Criminal Offences Enactment, which criminalises sex against the order of nature. In the case, the Federal Court stated:
-  It is quite clear… Articles 74(3), 75 and 77 (state) that the primary power of legislation in criminal law resides in Parliament.
- This is further borne out by the State List in terms of the powers of the State Legislatures to enact criminal laws, namely that the powers are subjected to the preclusion clause in item 1 of the State List and item 9 of the State List.
-  … it can be postulated that having regard to the preclusion clause in item 1 of the State List, when the two Legislatures (Federal and State) legislate a law concerning the subject-matter of criminal law, and the two laws touch on the same matter, the said laws cannot co-exist even if the said law is said to be against the precepts of Islam.
-  As suggested during the hearing of this petition and by way of example: corruption and corrupt practices, rape, theft, robbery, homicide (including murder and culpable homicide) are all offences against the dictates, injunctions and precepts of Islam. The existence of the preclusion clause however serves to restrict the States from making laws on these subjects which, as rightly conceded by the respondents, remain within the domain of Parliament to regulate and enact within the general design curated by our Federal Constitution.
Many of the provisions in the state Syariah Criminal Offences Act and Enactments are currently inconsistent with Article 74, 75 and 77 of the Federal Constitution as stated in the Federal Court decision.
The proposed amendments to the Procedure Act (Act 560) and Enactments will give effect to the state Syariah Criminal Offences Act and Enactments to be expanded to the online sphere. This means that all provisions in the state Syariah Criminal Act and Enactments, such as religious publication deemed against Islamic law–insults against Islam, opinions contrary to fatwas, prostitution, gambling, acts prepatory to sexual intercourse–could be applied in the online space. Consequently, the state Islamic officers are empowered not only to police the online behaviour of Muslim persons, but also to arrest Muslim persons for commiting the above-mentioned offences.
According to a briefing paper on blasphemy provisions in Malaysian law by Article 19, the following acts have been used to censor and punish expressions in relation to blasphemy/religion online and offline:
- Sections 298 and 298A(1) of the Penal Code penalise the insult of any religion;
- Section 233 of the Communications and Multimedia Act 1998 (CMA) prohibits, among others, improper use of network facilities or network services; and
- Sections 3(1) and 4(1) of the Sedition Act 1948;
- Section 7(1) of the Printing Presses and Publications Act 1984 (PPPA).
In a report by Article 19 and Civicus, at least nine cases of alleged insults to religion were documented, eight of which were in relation to alleged insults to Islam or the Prophet Muhammad. The cases were investigated under Section 233 of the CMA and Section 298A of the Penal Code.
Article 19 has called for Section 298 and 298A(1) of the Penal Code, the Sedition Act and the PPPA to be repealed and Section 233 to be reformed because these provisions are both inconsistent with international human rights standards, are arbitrary and open to abuse.
By expanding Act 560 and other state enactments to the online sphere, Muslim persons will be subjected to additional policing and prosecution for the same ‘offence’ under Syariah and civil laws. This violates the rights of Muslim persons to equality before the law as guaranteed under Article 8(1) of the Federal Constitution.
As such, the logical course of action for the Deputy Minister and state agencies would have been to review the compatibility of the Syariah Criminal Offences Act and Enactments with the Federal Constitution and international human rights standards, instead of proposing amendments that conversely fuel more discrimination and violence against the LGBTIQ community and violate the Federal Constitution.
Arbitrary use of insulting Islam and other provisions
Based on monitoring of reported cases of alleged insult to Islam, the State has consistently applied an expansive and broad interpretation in identifying what it deems an insult to Islam. Provisions like ‘insulting Islam’ and ‘encouraging vice’ under the state Syariah laws are used arbitrarily and expansively by state Islamic departments against LGBTIQ persons. In Sajat’s case, she was charged for insulting Islam because of gender identity and gender expression, in particular for wearing an abaya at a charity event that she organized for a tahfiz (Islamic) school. Meanwhile, ‘encouraging vice’ has been used against event organisers for organising events for or attended by trans women, restricting the freedom of expression and assembly for both the organisers and attendees.
These prosecutions reinforce and expand the criminalisation of LGBTQ persons. These cases result in multiple human rights violations, particularly that of freedom of religion and belief, freedom of expression, equality and non-discrimination, right to privacy, right to live with equal dignity and access to economic opportunities, among others.
Freedom of religion and belief is a fundamental right enjoyed by everyone, including LGBTIQ persons. LGBTIQ persons also rightfully believe that they are created in the image of their Creators and are fully accepted for who they are. There are many LGBTIQ persons who are devoted believers of religion. Many are respected imams, pastors and religious leaders who contribute to the ideals of inclusion, non-discrimination and equality within religion and in other spaces.
Impact of proposed amendments on LGBTIQ persons
The proposed amendments, which seek to expand the understanding of an ‘insult to Islam’ to include the promotion of a so-called LGBT lifestyle on social media, have been persistently advanced by PAS since 2018. The amendments violate multiple human rights, including:
- Freedom of expression and assembly as guaranteed under Article 10 of the Federal Constitution and Article 19 of the Universal Declaration of Human Rights (UDHR);
- Right to privacy, dignity, to be free from violence, and access to justice;
- Equality and non-discrimination; and
- Freedom of religion and belief.
The state must correct the misconception that “LGBT people are promoting their ‘lifestyle’ on social media”. What the state deems as ‘lifestyle’ is our very existence as human beings. As human beings, we are entitled to determine who we are and express ourselves accordingly.
There is overwhelming evidence that affirms the diversity of human gender identity, gender expression, sex characteristics and sexual orientation. This diversity is a natural occurrence in life, and it is not an anomaly, deviance, sin or mental illness. Any actions taken to suppress or correct sexual orientation, gender identity, gender expression and sex characteristics is a form of violence and can amount to torture.
Similar to a cisgender heterosexual person—who is free to share social media posts about themselves, their relationship, children or cats; and to participate in social media actions to promote human rights—a lesbian, gay, bisexual, trans, intersex, queer, non-binary person and others across the gender identity and sexual orientation spectrum can also express the same things, as all persons have equal rights to fundamental liberties. It is a double standard to restrict and penalise LGBTQ persons for posting on and participating in social media because of sexual orientation and gender identity. The state must recognise its role in perpetuating this double standard, and address the inequalities and harms caused by it.
We also wish to clarify that Pride is a global reminder of progress and struggles that LGBTIQ persons have experienced and are still experiencing as a result of discrimination. It is a celebration of equal dignity, the right to self-determination and life, freedom of expression and assembly, which are all guaranteed under Articles 5, 8 and 10 of the Federal Constitution, respectively. LGBTIQ persons in Malaysia especially are deprived of their right to live with dignity because of criminalisation, marginalisation and other forms discrimination that we experience daily. Pride is a reminder to every LGBTIQ person in Malaysia to live with pride, and the progress that we can achieve in doing so.
Chilling effect on rights and opportunities for all persons
The impact of the proposed amendments goes beyond Muslim persons. These are some of the broader impacts on all persons, specifically LGBTIQ persons regardless of religion:
- Increased threats over personal safety & barriers in accessing justice. Following the statement by the Minister of Religious Affairs in which he gave JAWI full license to arrest trans women, many trans women—regardless of geographical area and religion—expressed fear of Islamic department officers and police acting with impunity, violence by members of the public, being reported by neighbours to the authorities, and expressing their gender identity in public places. LGBTIQ persons are vulnerable to prejudical reporting by people who hold anti-LGBT views especially on social media. In the past, several PAS members have called on members of the public to report LGBTQ persons to the authorities.
LGBTIQ persons already lack access to justice because of criminalisation and the multiple forms of discrimination that they face. The Monitoring Report: LGBTIQ+ Rights in Malaysia documents the challenges faced by Muslim queer women in reporting cases of violence by family members due to fear of prosecution under state Syariah laws. As a result, the women were subjected to forced marriages by their family members. These proposed amendments are concerning as they will further restrict access to justice and isolate LGBTIQ persons.
The current administration must assess the broader impact of these amendments especially in relation to religious extremism. Malaysia has seen a rise in religious extremism over the past few years, and these proposed amendments may provide leeway for anti-rights and anti-LGBT groups to act with impunity. The current administration’s extreme position on LGBTQ persons reflects poorly on Islam, which in reality acknowledges diversity of gender, sex and sexual orientation.
- Loss of economic opportunities & economic marginalization of LGBTIQ persons. The social media space also serves as a space for LGBTIQ persons to circumvent employment discrimination and create economic opportunities for themselves and others, as acknowledged by Datuk Zahidi bin Zainul Abidin, the Deputy Minister of Communication, in a Parliament response on 3 August 2020. Many LGBTIQ businesses employ people from economically marginalised communities, including people living with HIV, single mothers, and other LGBTIQ persons, to uplift them.
Over the last few years, trans women business owners have been suffering major losses as a result of boycott campaigns, increasing anti-LGBT sentiments, and state prosecution. The proposed amendments will have a negative economic impact on LGBTIQ businesses online and shrink spaces for them to seek economic opportunities. In the current COVID-19 pandemic, where economic stress, mental health and domestic violence are on a rise, it is extremely irresponsible for the current administration to propose these amendments.
- Increased hostility and threats against human rights defenders. Over the years, many human rights defenders, regardless of their sexual orientation and gender identity, have been reported to the police and the state Islamic Departments for being associated with LGBTIQ activism or affirming the human rights of LGBTIQ persons.The state has also taken heavy handed actions against human rights defenders for promoting inclusion of LGBTIQ persons and questioning state policies and activities in relation to LGBTIQ persons. Case in point, the organizers of the Women’s March were investigated under the Sedition Act and the Peaceful Assembly Act because of the visibility and presence of LGBTIQ persons.
These amendments raise many concerns in relation to human rights defenders’ ability to carry out their human rights work, as inclusion of LGBTIQ persons or efforts to hold the state accountable could be deemed as acts against the law. We are concerned that the increasing hostile environment against LGBTQ persons will legitimize use of other laws and punitive measures against human rights defenders.
In conclusion, we reiterate our call for:
- The Prime Minister’s Department to drop the proposed amendments given the adverse impacts on all Muslim persons and LGBTIQ persons in Malaysia.
- Suhakam to carry out a study on the compatibility of the state Syariah Criminal Offences Act and Enactments with the rights protected under the Federal Constitution and international human rights standards set by the United Nations, as articulated in international instruments and conventions.
- Members of Parliament (MP) to call for a cost-benefit analysis and a human rights assessment of the proposed amendments if they are tabled when Parliament reopens. Further, MPs should also call on public consultations to fully explain the extent of the proposed amendments.
- Justice for Sisters
- All Women’s Action Society (AWAM)
- Amnesty International Malaysia
- Association of Women Lawyers
- Beyond Borders Malaysia
- Center for Independent Journalism (CIJ)
- Community Women & Workers Network (CWWN)
- Freedom Film Network
- KRYSS Network
- Legal Dignity
- Lingkaran Islam Tradisional (LIT)
- PELANGI Campaign
- Persatuan Sahabat Wanita, Selangor (Friends of Women Organisation, Selangor)
- PLUHO, People Like Us Hang Out!
- The KLSCAH Women Division
- Sarawak Women for Women Society
- Sisters in Islam (SIS)