Ricky Sim and MCCHR discuss the Malaysian High Court ruling in the Seksualiti Merdeka case.
When I first picked this topic, I was expecting to find extensive grounds of judgment filled with bias against the LGBT community. As a first year law student in the United States, I have seen many homophobic legal opinions from my constitutional law readings; for example, in 1996, Justice Scalia from the US Supreme Court in his dissenting opinion in Romer v Evan, stated that a law that is against homosexuals is just as acceptable as a law against conducts like murder. Romer v Evans was a landmark decision by the US Supreme Court, where the court ruled that the amendment in the Colorado state constitution which prohibits affirmative action based on sexual orientation was unconstitutional.
Needless to say that Justice Scalia’s dissenting opinion, particularly his equation of gay rights with violent crimes such as murder, attracted a number of criticism and challenge. One critique was that this comparison stemmed from Justice Scalia’s well-known conservative stance on a number of issues such as gay rights, the death penalty and abortion. In my opinion, there is always an objective way to look at cases pertaining to LGBT rights, or in fact any case.
When reading the judgment delivered by the Malaysian High Court to deny leave for judicial review applied by members of the organising committee of Seksualiti Merdeka (SM), I was interested to see how the judge’s moral view played out in his judgment. To recap, the series of unfortunate events seem to have happened like this: SM, an annual sexuality right festival in Kuala Lumpur, was held successfully in 2008, 2009, and 2010. It was even officiated by prominent figures like Marina Mahathir. No complaint or police interference occurred. However, in 2011, the police apparently received complaints against the event from several faith-based organisations (Muslim, Christian, and Buddhist groups). According to the grounds of decision delivered by the High Court in 2012, the police lawfully stopped the event pursuant to section 27A (1)(c) of the Police Act 1967. The police proffered the following reasons for stopping the event:
The court’s decision went as far as to say, “in fact, what the Applicants are doing now is to invoke the aid of this court to…prevent the enforcement of criminal law against them…the law lords…had refused to allow enforcement of criminal law by a Civil Court.” But this is not a criminal matter. I began to question the logic behind the decision — did the judge consider “deviationist activity” a criminal offence, punishable by the criminal law.
What is the “deviationist activity” that was alleged here? I venture to guess that it could be related to Malaysia’s law against sodomy; the Penal Code imposes punishment of imprisonment for a term which may extend to 20 years, plus whipping, for unnatural offences (whether such acts should be criminalised will not be discussed here as I think this topic warrants another article). You will recall that SM’s activities were intended to “increase awareness amongst the public of their fundamental liberties and human rights under the Federal Constitution. The main objective of the SM movement is to advocate for equality — that everyone in Malaysia deserves to be free from discrimination, harassment and violence, regardless of their sexual orientation and/or their gender identities and that it is everyone’s right to have control and to be responsible for their own bodies.” The event was only to provide a platform to discuss these basic human rights. So even if sodomy is a criminal offence, it has nothing to do with the event. If I was correct, then this is the similar logical fallacy that Justice Scalia committed when writing his dissenting opinion for Romer v Evans.
This brings us to the issue of distinguishing a sexual behaviour from LGBT rights. I point to another US case, Steffan v Cheney (yes, the former US Vice President Dick Cheney) to demonstrate the fallacy here, and why this decision against LGBT rights is not a criminal matter, but a subjective personal belief imposed by an authoritative figure upon a marginalized community. The reason I use this case is not because it bears any legal force in Malaysia, but the factual circumstances behind it are quite similar to what happened in the SM case and I find the judgment particularly enlightening.
During the “Don’t Ask, Don’t Tell” era, Joseph Steffan was “recommended” to resign from the US Naval Academy after he openly declared to be a homosexual. He was not charged with any homosexual conduct. He then brought a suit against the Secretary of Defense for being constructively discharged and challenged the constitutionality of the regulation that allowed the discharge for admitted homosexuality. Without even reaching themerit stage, the suit was dismissed because Steffan pleaded his Fifth Amendment right against self-incrimination and refused to answer the government’s deposition question on whether he had conducted any homosexual activity during his time in the Academy.
The Secretary of Defense argued that this deposition question is highly relevant because Steffan openly admitted to being homosexual, and therefore they should be allowed to depose him with this question. The DC Court of Appeal ruled that whether Steffan had engaged in any homosexuality act during his tenure in the Naval Academy was irrelevant as the issue at hand was whether the Naval Academy could lawfully discharge somebody who proclaims to be a homosexual:
“Judicial review of an administrative action is confined to “[t]he grounds … upon which the record discloses that [the] action was based.” SEC v. Chenery Corp (1943). This rule applies with equal force to judicial review of administrative actions by the military…Here Steffan is challenging the Navy’s administrative determination that he is unfit for continued service because he stated that he is a homosexual…does not put into issue the question whether he engaged in potentially disqualifying conduct unless such conduct was a basis for his separation…The district court therefore erred in finding the inquiry into homosexual conduct vel non to be relevant on the ground asserted in its opinion.” – Steffan v Cheney (1990).
In the 90s, homosexuality was a rather sensitive topic especially in the military setting, where it was claimed that this issue involves the nation security and troop morale, which was why the “Don’t Ask Don’t Tell” policy was kept in place. To Mr. Cheney and many top Americans military officers at that time, one gay guy coming out in the Naval Academy and challenging the policy compromised the harmony of the team as well as the security of a nation. The judge, however, rightly differentiated between an illegal homosexual conduct and a statement about one’s homosexuality. What was being outlawed is the activity, not what one had stated in public. A person who states that he is gay does not necessary mean that he engages in any homosexual activity, just as you stating that you are straight and single does not necessary mean that you engage in heterosexual activity all the time. There must be reasons as to why there are so many lonely hearts out there, and making a statement in public about yourself can be one of the reasons, but not necessary the only reason.
Similarly in the SM case, what is punishable under the Penal Code is the sexual activity and what the event was being accused of is that “it may lead to giving recognition to acts, which are contrary to the law”. However, the event was about LGBT rights and freedom from harassment and discrimination, basic rights and freedom that every human being should have. So why did the police focused on “the deviationist activity” that was “contrary to the law, religion, and public morality”? Why did the judge believe the applicant was trying to avoid criminal punishment by applying for judicial review?
Although the event relates to the LGBT community, the judge and the police should not be predisposed to what they think LGBT is about. Judges are supposed to interpret the law without any external influence and not express their own valued perception and views when making a decision. LGBT is not about sex, although that could be the first association that comes to mind, probably due to the fact that sexual preference differentiates homosexuals from heterosexuals. Rather, it is important for the police, courts and all of us to discuss the convenient association of LGBT with sex and delve deeper into the issues at hand. There are no deviationist activities at play — LGBT is about fundamental liberties, and not about entrenching biasness just because someone is different. It is about the basic freedom of association and expression, of holding an event to discuss issues that are viewed as important to the LGBT community. It is about being there for one another after being shunned by family members and persecuted by the authorities. These activities hardly contravene any laws in Malaysia, even by any stretch of the imagination — but only if you disassociate sexual conduct from sexual preference.