A review of ‘Homosexuality, Right or Crime’?

April 15, 2012 by Ahmad Fuad Rahmat

Malaysia is a complex nation of ethnicities, languages, religions and cultures.  In the best of times, this wealth of character can be a source of great pride — an actual demonstration of how it can be possible that a society comprised of communities with different values can exist with relatively little to no threat of confrontation. In the worst of times, all this can mutate into a politics of petty threats and race baiting, or more worryingly, violence, as we are all too often reminded.

What is perhaps ironic is the little say that Malaysians themselves are given about this state of affairs. We have been told for the longest time, that race and ethnicity are sensitive topics and that the responsibility to make decisions about them should be left to the authorities: They will be the ones to tell us about our history and identity while we just sit to bear it. The outcome of course is that identity becomes discussed so poorly. The fact that 1 Malaysia can go on and on about some abstract ideal of inclusive citizenship without even a single mention of racism, is testament to the Malaysianness of it all. This, at any rate, explains why, despite the fact that diversity is so much a part of everyday Malaysian life and consciousness, we nonetheless have a very long way to go in understanding what it is really about.

This also explains the apprehensions underlying the increased chatter about homosexuality off late, for it just adds another uneasy layer into the long list of unresolved issues in Malaysian identity. Each of the category in LGBT represent challenges established heteronormative conventions, which incidentally is the very convention on which every modern nation stands, as the constant evocations to the “motherland” (and in our case “ibu pertiwi”) confirms (for who, or what, else are our warriors to sacrifice for?) This explains the visceral reactions: The mood is now such that gays are not only sinners, they are also sick, sexually out of control and out to get your kids. In other words, they do not belong in Malaysia.

Homosexuality: A Right or Crime?

It is out of this constellation of circumstances that the forum at the International Islamic University on 13 April entitled “Homosexuality: A Right or A Crime” was held. The two options are indeed peculiar. In asking whether it is to be allowed or outlawed, it implicitly assumes the state’s perspective, effectively framing homosexuality as an act, rather than an identity or a relationship between persons.

It is no wonder then that two lawyers were among the panellists. They were Lim Chee Wee, president of Malaysia’s Bar Council and Dr Shamrahayu Abdul Aziz, a constitutional expert and lecturer at UIA. They were joined by Dr Farouk Musa, Chairman of the Islamic Renaissance Front.

Dr Farouk began the discussion by stating his position that the title is a false question. The only article in the Penal Code that mentions sodomy, Section 377, has been used only seven times in the history of Malaysia since 1938. Four of that was against Anwar Ibrahim. Thus the issue is stoked at this very juncture because of the political mileage it can give to BN in leading to the elections.

The political nature of this controversy is evident when you consider the fact that Saiful Bukhari’s case against Anwar was premised on the fact that the act was non-consensual as asserted by his solemn vow whereas Section 377B which was cited in the charge refers to consensual sex. This fact alone highlighted the fact that there was a pervasion of justice. The obvious reason why the charge was frame unde 377B was due to the fact that there was no medical evidence of sexual penetration to suggest non-consensual sex.

It also goes without saying that to have a code against “unnatural offenses” “against the order of nature” is outdated given that we live in the 21st century. It should also be reminded that this was a British law of the Victorian era instituted by the British colonial powers in their time in Malaysia.

He added that no government has any place or say in what the sexual lifestyle of any adult individual. He supported this claim by pointing to the freedom of conscience that is safeguarded by the Quran: no action is sinful or to be rewarded if it is not done in accordance with free will. In other words, to be coerced to be good, is not really being good. He refers to the story of Adam and Eve, familiar to everyone, to show how without free will, their outcasting from heaven would not make sense.

Dr Shamrahayu did not say many different points on her turn, immediately proclaiming that homosexuality is a sin and a crime upon the chance. The nationalist appeal is also evident. Malaysia is a civilization and every civilization has its own morals that must be respected. Speaking in her capacity as a constitutional expert (she claimed that she reads the constitution everyday, more so than she reads the Qur’an) she added that the constitution provides no space for homosexual behaviour at all.

The religious undertones to her approach is rather clear, if not altogether simplistic. She wavered at one point on whether or not sodomy should fall under hudud or ta’zir law while adding that all religions agree that it is a sin, which is also questionable, given the progressive advances made under certain segments of certain faiths.

Lim Chee Wee was far more informative. He began by appealing to the conscience of the audience asking them to imagine if they know of a friend or loved one who are gay or is suspected to be. He then asked them to seriously think if they would like to see them punished for that simple fact.

He also added that the issue of homosexuality is far beyond the simplified Western-Islamic/Eastern dichotomy. Countries such as Japan, South Korea and India have either repealed their sodomy laws or never had them to begin with. The point is that in Malaysia’s climate of how the issue has been so politicized, we must be careful not to take the homophobic frenzy as fact.

At any rate, there is nothing in the constitution that states that homosexuality, understood as an identity, as unlawful. In fact, the Penal Code 377 can easily apply to straight people since it covers both homosexuals and heterosexuals and it specifically targets purportedly “unnatural” sex acts that could include oral sex. He ventured to claim that in the 21st century, one would be in bad faith to simply claim that oral sex is unnatural.

More Questions than Answers

What defined the evening, however, was the Q&A session that ensued which eventually went on much longer than the panel itself.

It started on a theoretical note. The first question, as anyone following the debates in Malaysia could by now expect, was on the so called “limits of freedom”. The questioner, pressed Dr Farouk on whether the notion that government power could be separated from matters of personal morality is coherent, given that all laws can be said to have some bearing on our personal life. The very existence of a police force, for example, makes a difference on our personal safety. As this logic goes, any society would require the encroachment of government power into personal life should it want to function.

On the subject of human rights, the inquirer stated that he takes the cultural relativist position.  In this, each culture is to define rights differently, given their history and heritage. Therefore, if we live in a Muslim culture it only makes sense that Islam be the point of departure from which we understand rights.

The first question misses the point. Of course, the political is personal. A just state is not one which has absolutely no powers. Rather it is one that exercises power with fairness. The option then is not between an all encroaching state or no state at all. Therefore,  the real question to be asked is if, given all we know of the world we live in and what science can tell us, matters of love and intimacy between two consenting adults should fall within the purview and resources of government activity.

Additionally, the cultural relativist appropriation of human rights makes no sense since it can be rejected on the simple basis that relativism by definition must concede to different, in fact, an indeterminate amount of interpretations and understandings, which could even contradict one another. Relativism itself is relative. Either rights are natural, that is to say universal and inalienable from us by virtue of us being humans – regardless of us being Muslim, white, tall, old or disabled — or it is merely an arbitrary and contingent set of whims and preferences determined by one segment of society at the expense of others.

What does Islamic Human Rights mean anyway? Those who sought an answer to this were not wrong to expect it from the next member of the audience who spoke. He began after all, by declaring his affiliation with Himpunan Keilmuan Muda, an organization that has actively made it a point to rebuke IRF on various occasions in the past purportedly, in the name of a more authentic appreciation of Islam.

Alas, what ensued was nothing short of a disappointment. For one, his questions bordered so closely on the ad hominem, doing nothing constructive to bring the discussion forward. Dr Farouk was asked if all laws that prosecute political opponents should be abolished since they risk abuse for political reasons — to which one can simply say: not all, just the outdated Penal Code 377 we have so clearly seen manipulated time and time again. Dr Farouk was also somehow taken to task for mentioning surah al-A’raf without wanting to discuss its interpretation (even if it was clear from the beginning that it was not an event to discuss exegesis, given the diverse cultural composition of the panel and audience). Dr Farouk was also asked why, if 377 is already archaic, should we bother with the story of Adam and Eve which is even more archaic? The answer to this, which is plain for even Dr Sharahayu to see, is that an outdated law which could be potentially abused to persecute innocent human beings, is not comparable to a metaphorical lesson from history.

Thankfully, the confusion with which the round of questions began made way soon enough to a more enlightening discussion. No longer content with the barrage of false allegations levelled towards the LGBT community, Pang Khee Teik, organizer of Sexuality Merdeka, took to the stage to speak. He reminded the audience of the ongoing discrimination and violence experienced by Malaysian gays, who with no legal recourse or recognition from society, have to continue enduring a life of secrecy and alienation. All that is sought for is not the conversion of conservatives into their lifestyle, or even for them to agree to LGBT choices. The point, rather, is to enable the members of Malaysia’s LGBT community the same right to a life of dignity and protection as any other citizen.

Nicol Paul Miranda, an openly gay student still in secondary school soon took the mic as well. He spoke of the need to understand homosexuality beyond sexual acts, and to see how it can be as much about a loving, caring and sincere relationship between individuals, that it is possible for two human beings of the same sex to love one another. In what was perhaps the most touching moment of the evening, Nicol then paid tribute to his mother, who was also present in the audience, for accepting his homosexuality. The considerable applause that this gesture received was noteworthy.

Indeed, such heartfelt appeals encouraged more sympathetic perspectives to come forward. An openly atheist bisexual, recently accepted by UCLA to study psychology in turn spoke of the injustice, not to mention sheer heartlessness, of discriminating another human being purely on the basis of his or her sexuality, while disregarding all other virtues and considerations. Later, when the allegation was made by a social science student that homosexuality is a “psycho disease”, two other members of the audience who were trained in psychology spoke out to state the fact that the global consensus among medical professionals is that there is no scientific evidence to suggest that homosexuality is in any way a mental or physical illness.

Kim Khaira, an undergraduate student in political science at UIA, reminded the audience that homosexuality is not an issue of creed. She can attest to knowing of many law abiding and practicing gay Muslims who are more consistent in their appreciation of Islam than many other straight Muslims.

It was hard to ignore the fact that these views were being so forthrightly uttered and heard in the Saudi funded International Islamic University of Malaysia. One could even sense — if not in the increasing applauses, the silence and patience with which some of the more progressive views were heard — a subtle shift in the mood of the audience.

This was most evident towards the end when Dr Shamrahayu herself was caught changing, if not contradicting her initial position. At a rather tensed point in the exchanges, she conceded that her right to deny a homosexual a job position based purely on his sexual orientation should be defended as much as the demand for the homosexual to live freely. This was of course confusing, just an hour ago she labelled homosexuality as a sin and crime, but then she said that it should be a matter of personal choice. Was she also equating the moral questionability of discrimination with that of one’s individual right to be a homosexual? Such details I suppose need not matter, so long as the perplexity that emerged in that moment of vulnerability was enough to suggest that she was indeed beginning to see a bigger world than the one she had believed in all along.

Of course, where that shift in mood is really headed to is anyone’s guess. In fact, the warmth with which Dr Shamrayu’s initially more disparaging views were received suggests that many among the audience were by no means convinced by the LGBT stance. But a real discussion on a very sensitive topic nonetheless finally took place for once.

* Ahmad Fuad Rahmat is a Research Fellow, Islamic Renaissance Front.

* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.

source: http://www.themalaysianinsider.com/sideviews/article/a-review-of-homosexuality-right-or-crime-ahmad-fuad-rahmat/