The Malaysian Alliance of Civil Society Organisations in the UPR Process (MACSA) strongly denounces the statement by the spokesperson of the European Union (EU) on 11 November 2019 in response to the sentencing of five Muslim men in the Syariah High Court of the State of Selangor for engaging in unnatural gay sex.
Such a statement runs afoul of the moral and religious values we hold dear as an Asian nation having regard to Islam’s position as the religion of our federation per Article 3(1) of our Constitution, and the syariah institutions who administer Islamic law which is considered the lex loci of this land as affirmed in the celebrated 1927 case of Ramah v Laton.
The statement is also misconceived in that it purports to affirm the human rights of LGBTQ persons under international human rights law and relevant international conventions, in particular the Universal Declaration on Human Rights (UDHR), when the UDHR makes no mention of unnatural gay sex as a protected right. Certainly other rights as enumerated by the UDHR apply equally to LGBTQ persons as they do to heterosexuals, in particular freedom of religion per Article 18 of the UDHR.
MACSA reminds the EU that the five men so sentenced were men of the Muslim faith and thus are governed by syariah. This is also in line with the requirements of the Cairo Declaration on Human Rights in Islam (CDHRI), Article 10 of which holds that Islam is the religion of true unspoiled nature and it is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism. This principle is also affirmed in Article 22 of the ASEAN Human Rights Declaration where every person has the right to freedom of religion.
The sentencing involving caning also can in no way be described as a cruel, inhumane and degrading practice and a form of torture since Article 1 of the Convention Against Torture (CAT) is clear in that torture only applies to situations where information is forcibly extracted from persons for the benefit of a state and clearly excludes any lawfully sanctioned punishment in response to the commission of a crime, in this case, gay unnatural sex committed by the said five Muslim men. Thus it is in no way a breach of their rights. The questioning of and opposition to the application of syariah law upon these men, as done by the EU per their statement, however is a gross violation of their right to freedom of religion, protected by the UDHR, CDHRI, AHRD and various other relevant international conventions.
Article 7 of the AHRD states that while human rights are universal and indivisible, their realisation must be considered in the regional and national context bearing in mind, among others, different legal, cultural, historical and religious backgrounds. It is in accordance with this that Malaysia has never accepted or affirmed any international human rights instrument that permits the free practise of unnatural gay sex such as the controversial and widely discredited 2006 Yogyakarta Principles but has rather chosen to adopt the 2016 Yogyakarta Declaration on Human Dignity**.
Article 1 of this 2016 Declaration affirms that human beings while equal in dignity and rights affirm their derivation from God and is subject to obligations and responsibilities to God and other fellow human beings. Thus, Article 2 follows by affirming that values derived from God and preservation of the family in is natural sense is the basis for human dignity and thus human rights.
Article 7(1) of the 2016 Declaration also affirms that all human beings have the right to be protected from dehumanisation, which includes free sex, drug trafficking, pornography, paedophilia and also unnatural sexual orientations and gender identities. The sentencing by the Selangor High Court of the five Muslim men aforementioned thus, accords with human rights practice that is accepted and affirmed within Malaysia, having regard to its values and context as allowed and encouraged by the aforesaid international human rights instruments above.
It is a known fact that unnatural gay sex leads to endangerment of the life of the person and those around him. Our national health reports have shown that the HIV prevalence has almost tripled in men who have sex with men within 3 years (from 8.9% in 2014 to 21.6% in 2017) in Malaysia that warrants a holistic approach in curbing the HIV infection through religious emphasis of prevention. Furthermore, there are concerns on the surge of “chemsex” parties. This is where people spend days getting high on drugs and having sex with scores of partners. Reuters had also reported that this sort of gay parties, similar to the current case in Malaysia, had re-fuelled epidemics of HIV among gay men in European towns and cities.
MACSA accordingly calls on the EU to withdraw the offending and uncalled for statement made by it on 11 November 2019 and promptly apologise to all Malaysians for the same. MACSA also calls on the EU to affirm the relativist approach to human rights that enables the harmonious application of the universal principles underpinning such rights.
Associate Professor Dr. Rafidah Hanim Mokhtar is the President of WAFIQ and Co-Chairperson of MACSA.
The Malaysian Alliance of Civil Society Organisations in the Universal Periodic Review (UPR) Process (MACSA) is a coalition of civil society organisations with the specific aim and object to look into, as well as advocate, human rights issues in Malaysia for the UPR Process.
** The 2016 Yogyakarta Declaration on Human Dignity: The Fundamental Principles to Preserve Human Dignity and Great Civilisation was declared in UC, UGM, Yogyakarta in the Republic of Indonesia on November 6, 2016 following the 5th Global Conference of the International Association of Muslim Psychologists in response to the 2006 Yogyakarta Principles which was declared in the same place 10 years before. The document was affirmed by various eminent scholars from various backgrounds including but not limited to Professor Malik Badri, Dra. Elly Risman, Professor El Zubair Bashir Taha, Professor Dr Evelin Witruk, Professor Dr. Habib Chirzin, Professor Dr. Rahmatullah Khan, Professor Dr. Euis Sunarti, Professor Dr. M. Tahir Khalily and Dr. Heru Susetyo.