(Bangkok) – The Malaysian government should renounce a cabinet minister’s proposal to increase criminal penalties against lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said today. The attempt to strengthen criminal penalties against LGBT Malaysians is the latest in a series of moves to cement the anti-LGBT, anti-human rights stance of Prime Minister Muhyididin Yassin’s Perikitan Nasional government.
The proposed amendment to the Syariah Courts (Criminal Jurisdiction) Act (Act 355), submitted by Ahmad Marzuk Shaary, deputy minister for religious affairs in the Prime Minister’s Department, would allow state Sharia (Syariah) courts to establish harsher sentences for same-sex conduct than the current maximum Sharia sentence permitted under federal law. Marzuk also proposed codifying as Sharia criminal offenses changing one’s gender and producing or sharing social media content deemed obscene and indecent, including images of non-normative gender expression.
“Malaysia’s state and federal statutes that criminalize LGBT people are already out of bounds with regard to international law, and the government seems to be sinking even deeper in its disregard for human rights,” said Neela Ghoshal, associate LGBT rights director at Human Rights Watch. “Rather than enhancing penalties for actions that harm no one, the government should repeal such penalties.”
Malaysia’s state Sharia laws, which punish consensual same-sex relations as well as gender nonconformity, are among the many laws and policies in Malaysia that discriminate against LGBT people. Malaysia’s federal penal code covers most criminal acts in the entire country. State Sharia laws, enforced by state Islamic Religious Departments and tried in Sharia courts, are only applicable to Muslims, who make up about 60 percent of Malaysia’s population.
All 13 states and the federal territory criminalize same-sex relations and gender nonconformity. In addition, section 377 of the federal penal code punishes any form of anal or oral sex with up to 20 years in prison and mandatory caning.
Act 355, adopted in 1965 to safeguard Malaysia’s essential secular character, limits the sentences that can be imposed by Sharia courts. Sharia courts could impose maximum sentences of one year in prison and a fine of up to RM 1,000 (US$250). The act was amended in 1984 to increase the maximum sentence that Sharia courts can impose to three years in prison, fines of up to RM 5,000 (US$1,240), and caning of up to six strokes.
Before 2018, according to Malaysian human rights activists, Malaysian courts had never actually imposed caning sentences, which are a form of torture under international law, for same-sex conduct. But in September 2018, Terengganu state carried out a caning sentence against two women accused of attempted same-sex relations. And in November 2019, the Selangor Sharia court sentenced five men to fines, imprisonment, and caning, while others who pled not guilty are awaiting trial.
The Selangor case spurred a constitutional challenge, pending before the Federal Court, in which the petitioner – one of the men awaiting trial – argues that the duplicative state and federal prohibitions on same-sex relations violate federal law. A second legal challenge, filed before Selangor’s High Court but stayed by the court while the federal case is pending, contends that the criminalization of consensual same-sex relations violates constitutional rights, including the right to equality before the law.
State religious departments in Malaysia have a history of subjecting trans women to arbitrary arrest, assault, extortion, and violations of their privacy rights, Human Rights Watch said. An appeals court ruled in 2014 that laws against “cross-dressing” in Negeri Sembilan state were unconstitutional, but in 2015 that ruling was reversed on a technicality.
In July 2020, the religious affairs minister, Zulkifli Mohamad, published a Facebook post giving “full license” to Federal Territory Islamic Department (JAWI) officers to arrest transgender people and “counsel” or “educate” them so that they “return to the right path.” Recent abuses against trans women include an October 2020 raid on a birthday party in Kedah, during which state religious officials arrested 30 trans women, and the January 2021 arrest of Nur Sajat, a cosmetics entrepreneur and social media personality, on charges of “insulting Islam” by dressing in clothing typically associated with women at a religious event.
“In Malaysia transgender people live in fear of being targeted and prosecuted just because of who we are,” said transgender activist Nisha Ayub, a transgender activist. “Aren’t we part of the society? Aren’t we supposed to be protected by the laws just as others?”
Human Rights Watch has documented that successive governments in Malaysia have employed anti-LGBT rhetoric as a political tool, calling on LGBT people to “change” their gender identity or sexual orientation to “return to the right path” or risk retribution. Officials have attempted to silence alternative narratives that advance LGBT people’s rights and acknowledge their humanity. For instance, in December, the Home Ministry banned a book entitled “Gay is OK! A Christian Perspective,” and denounced homosexuality as “clearly forbidden and contrary to all religious teachings.”
LGBT people in Malaysia told Human Rights Watch and the Malaysian trans rights group Justice for Sisters that hostile government rhetoric contributes to violence against LGBT people by members of the public.
Malaysia’s national human rights institution, SUHAKAM, which has also documented violence and discrimination against trans people in Malaysia, condemned the proposal to amend Act 355. It said that the government should “adopt a more compassionate approach by respecting human rights for all.”
On January 21, Prime Minister Muhyiddin, who in a previous role as deputy prime minister said that Malaysia “does not recognize LGBT rights,” surprised Malaysian human rights activists by expressing support for laws that prohibit hate speech, including on grounds of sexual orientation, in prepared remarks at an Association of Southeast Asian Nations (ASEAN) forum. Activists highlighted the disconnect given that Muhyiddin’s own government advocates persecution of LGBT people.
“It is the height of hypocrisy that on the one hand, Prime Minister Muhyiddin Yassin urges ASEAN countries to enact laws against hate speech based on sexual orientation, and on the other hand his cabinet member calls for amending laws to further criminalize LGBT persons in Malaysia,” said Chong Yee Shan of Diversity Malaysia. “The prime minister should walk the talk and take meaningful steps to address hate speech while ending criminalization of LGBT persons in Malaysia.”
