This article was later published in MalaysiaKini.
Last week, Malaysia welcomed the first sitting of a nine-member bench for constitutional matters at the Federal Court. Wanting to keep the world reminded of our progress since Pakatan Government took the helm, Malaysia kick-started this week with its first-ever public canning as punishment for homosexuality. What a way to keeping ourselves in the global headlines for two weeks in a row.
The difference between both headlines is – the latter news seemed to have created more momentum. Why? Well, because the latter is a negative one. This is what researchers called the “negativity bias”. There is good logic to being negative in that sense – to keep ourselves alert of potential threats. This has served as a good survival strategy since the dawn of human history.
Indeed, many are talking about the latter news, from civil societies to The Times, BBC, The Guardian, USA Today, NBC News, Indian Express, SBS News, Reuters, Newshub New Zealand to IOL South Africa, except the Pakatan MPs save for a few brave souls who contributed a tweet or two about the news. As I was wondering why, the de facto law minister seemed to have read my mind. The reported answer to the deafening silence across the board from the Pakatan MPs was simple – “The breach of Syariah law by the two women and the subsequent punishment of caning are under the state jurisdiction and federal government cannot interfere in the exercise of state authority.”
The religion of Islam, in particular, the “creation and punishment of offences by persons professing the religion of Islam against precepts of that religion” is a matter for State Legislature, that I agree. However, to take a provision in the Federal Constitution dealing with the demarcation of legislative competence in answer to the grave violation of human rights, with the greatest of respect, calls for a deeper understanding, thought and reflection of one’s value as a leader.
The Federal Constitution is the supreme law of the land, so much so that any law inconsistent with it shall, to the extent of the inconsistency, be void. For example, Legislation A has 10 provisions. 1 out of 10 of the provisions is inconsistent with the Federal Constitution. That 1 provision is therefore void, with the remaining 9 provisions enforceable as law. All provisions of law having the effect of prohibiting and/or condemning LGBT, I say, are inconsistent with the Federal Constitution and are therefore void.
Firstly, they are in contravention of Article 5 of the Federal Constitution. The right to life and personal liberty contained in Article 5 of the Federal Constitution encompasses all basic conditions for a life with dignity and value as human beings. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The expression ‘life’ appearing in Article 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life (Tan Tek Seng, per Gopal Sri Ram JCA). Life is precious in itself. However, life is only worth living because of the freedoms which enable each individual to live life as it should be lived. The ability to determine one’s core identity and to decide on how life should be lived is a matter of individual autonomy. The duty of the State is to safeguard that ability and not to dictate those decisions. Such a duty does not depend upon its popularity, for to live and love fearlessly is a right under the rubric of life conferred with the sanctity of constitutional protection. Provisions of law which effectively prohibit one to live a dignified life in the way that is natural to him/her contravene Article 5 of the Federal Constitution.
Once there is a violation of a fundamental right under Article 5, Article 8 will at once be engaged (Sivarasa Rasiah, per Gopal Sri Ram FCJ). Article 8 of the Federal Constitution provides for equality before the law. Legislative provisions having the effect of prohibiting and/or condemning LGBT unfairly subject the LGBT community to the enforcement of a set of law in denial of their dignity and core identity. The LGBT community, unlike any ordinary people in Malaysia, will be penalised the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialise; and be liable to arrest, prosecution and stigmatisation (Muhamad Juzaili, per Hishamudin Mohd Yunus JCA). Provisions of law condoning such discrimination infringe Article 8 of the Federal Constitution.
Thirdly, they offend the basic structure of the Federal Constitution. The Federal Constitution is the supreme law of the land for many reasons, one of which is to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority (Indira Gandhi, per Zainun Ali FCJ, citing Reference re Secession of Quebec). A constitutional democracy can survive when the minority groups have an undiluted assurance that the rule of law will not allow their rights to be trampled underfoot by the authorities (Indira Gandhi, per Zulkefli Ahmad Makinudin PCA, citing Tun Suffian). Any attempt to justify discrimination against the LGBT community on the ground that it does not mirror the needs and aspirations of the larger majority of the Malaysian society betrays a misunderstanding of the basic structure of the Federal Constitution.
“The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”Dr D Y Chandrachud J in Justice K S Puttaswamy and Anor v Union of India and Ors