A group of 28 human rights NGOs and a political party said the recent sentencing of five men to canings and fines for attempted sexual intercourse against the order of nature is an indicator of growing hostility towards lesbians, gays, bisexuals, transgenders, and queers (LGBTQ) in the country.
In a statement yesterday, the group noted an alarming trend of prosecution against LGBTQ persons in the country.
The group, which comprises Suara Rakyat Malaysia, Tenaganita and Parti Sosialis Malaysia, among others, said the five men were detained following a raid at a private function last year.
“The heavy-handed punishments to teach others a cautionary tale or as deterrence is a cause for concern,” said the group.
“We remind the court that sexual conduct between consenting adults is not a crime and the LGBT people are not criminals. Private and consensual sexual acts between adults must not be anyone’s concern,” said the group.
“We also condemn the act of tajassus or spying by the religious authorities for the purpose to persecute the five men,” said the group.
The Selangor Syariah High Court yesterday sentenced four men to six months’ jail, six strokes of the cane and a RM4,800 fine for “attempting intercourse against the order of nature”.
A fifth man was sentenced to seven months’ jail, six strokes of the cane and a RM4,900 fine for the same offence.
Islamic enforcement officers detained the five accused with seven other men during a raid on a two-storey apartment in November last year.
Sodomy and same-sex acts are illegal under Islamic law in Muslim-majority Malaysia, although convictions are rare.
The group also said the judge, Mohamad Asri Mohamad Tahir, made many prejudicial statements unrelated to the facts in issue causing victimisation of the five individuals.
“The judge’s decision should not be based on impact on society, as these impacts are entirely assumed, imagined and exaggerated,” added the group.
Remarks made by Asri included stating that people “like them” are difficult to control and must be segregated led the group to conclude that such extremely prejudicial sentiments resulted in unjust sentencing for the five.
“The state has a duty to protect and promote the human rights and dignity of all people, including people of diverse sexual orientation, gender identity and gender expression, and end all forms of discrimination, marginalisation and victimisation.
“LGBTQ and people of diverse sexual orientation, gender identity and gender expression have suffered enough discrimination and violence from the state and non-state actors alike. It is time for the state to end all discrimination and violence against LGBTQ persons,” said the group.
The country’s discriminatory laws should be abolished as they are unconstitutional, said the group.
These laws have violated Article 7 on living with dignity and impartial trial, Article 8 on equality before the law, and Article 9 on freedom of movement, according to the group.
It added that these laws further violate the Universal Declaration of Human Rights.
“These laws not only empower moral policing, raids and arbitrary arrest, but it also allows harmful and violent practices like caning to continue,” said the group.
It also urged the state to end all discrimination and violence against the LGBTQ persons.
The court’s excessive punitive measures have an impact on these men’s livelihood, job security, and responsibilities to their families, according to the group.
Other NGOs which joined the statement included All Women’s Action Society, Justice for Sisters, Pelangi Campaign, Seksualiti Merdeka, Queer Lapis and KLSCAH Youth.
Meanwhile Social health organisation Galen Centre for Health and Social Policy urged the Selangor Syariah High Court to stay the implementation of the sentence and review the suitability of judicial caning as a form of punishment, referring to it as “cruel and unusual”.
Its programme officer Dorian Wilde reiterated that caning is a form of torture as classified by the United Nations Convention Against Torture.
“Besides the physical pain inflicted, the long-term consequences of judicial caning must also be considered. Studies have shown that victims of caning are at a higher risk of developing mental health issues like post-traumatic stress disorder, anxiety and depression,” he said in a statement.
Adding that the five are already facing intense public shaming due to the nature of the charges, Wilde said caning them is an additional traumatic experience meant to invoke further shame and humiliation.
“We also call for a moratorium of judicial caning as a form of punishment in both the civil and syariah justice system, in our view that medical practitioners should not be sanctioning or facilitating the practice of judicial caning.
“They must instead come out strongly against such an unethical practice. The main duty of a doctor is to first do no harm, to which caning goes directly against this humanitarian principle,” he said.