Pakatan Harapan Cannot Wash Its Hands of the Abuse LGBT Malaysians Face

Last week, de facto Law Minister Datuk Liew Vui Kong defended the Pakatan Harapan government’s record in relation to the public caning of two lesbian women in Terrenganu. The pair had been sentenced by the Terrenganu Syariah Court for attempted same-sex relations between women under sections 30 and 59(1) of the Syariah Criminal Offences Enactment (Takzir) (Terengganu) 2001.
YB Liew argued that the Pakatan Harapan Federal Government is absolved from responsibility simply because the Federal Constitution prescribes that the relevant syariah laws fall under state jurisdiction. With respect, this argument is unsound. The incident, as well as the wider persecution faced by LGBT Malaysians, is absolutely the Federal Government’s responsibility.
The Federal Government ought to take notice when state laws violate Malaysians’ constitutional rights
True enough, the two women were sentenced pursuant to a state syariah law, and Islamic matters are generally state, rather than federal matters under List II of the Federal Constitution’s Ninth Schedule. However, serious questions must be raised over whether a syariah provision allowing public caning in the manner seen can be compatible with the fundamental liberties guaranteed by the Federal Constitution.
An analogy may be drawn with the judicial treatment of section 66 of the Syariah Criminal Enactment 1992 (Negri Sembilan). In a landmark 2014 judgment, the Court of Appeal found that that provision’s punishment of ‘cross-dressing’ by Muslim men with a RM1,000 fine and / or imprisonment not exceeding six months violated the constitutional rights to personal liberty, life, and equal protection of the law (among others) of the case’s applicants. Although later overturned by the Federal Court on procedural grounds, the substance of the Court of Appeal’s decision was never at issue.
Hence, it stands to reason that if a syariah provision permitting the persecution of transgender Malaysians is, in all but name, unconstitutional, so might the part of the Terengganu enactment permitting the persecution of lesbian Malaysians. The Federal Government surely cannot so easily shrug its shoulders when state provisions incompatible with the supreme law of the land are used to abuse Malaysian citizens.
These types of provisions put Malaysia in breach of international law
YB Liew is of course correct that the Terengganu state legislature is controlled by opposition party PAS. However, regardless of whether the Federal Government is able to directly control the syariah laws passed by state legislatures, the position is clear that should any state laws violate international law, Malaysia as a country incurs legal responsibility. A country cannot rely on its constitution to avoid its international obligations. This was established in 1932 by the Permanent Court of International Justice’s Treatment of Polish Nationals advisory opinion.
A compelling case has already been made by SUHAKAM that the public caning of the two women violated the absolute and universal prohibition on torture. The prohibition applies as part of customary international law, irrespective of Malaysia’s treaty commitments. That the country has been put in breach of a vital norm of international law should in itself warrant the immediate attention of the Federal Government.
Many similarly abusive laws are on the books in Pakatan Harapan controlled-states
More generally, YB Liew’s comments ignore the reality that many states with legislatures controlled by Pakatan Harapan have syariah laws which function similarly to the Terengganu enactment, serving to deny LGBT Malaysians of their basic human rights.
Take for instance the aforementioned Negri Sembilan ‘cross-dressing’ syariah provision. Syariah provisions which create an essentially identical offence are on the books in every single state that Pakatan Harapan controls. If Pakatan Harapan wished to, the repeal of such provisions in the states it controls is well within its grasp. And that is to say nothing of Section 377 of the Penal Code, the federal law (dating from the colonial period) which criminalises gay sex.
The Pakatan Harapan Federal Government cannot forget that it has the means to ensure all laws are consistent with the Federal Constitution and international law. In order to afford common decency to LGBT Malaysians, it must be willing to do so.
