This writing is to refute the article published on Astro Awani which I just realized days ago. It is on a remarkable decision by the Canadian court that has granted Hazim Ismail, Malaysian gay and atheist, the status of refugee. The readers are advisable to read the article before tuning into this writing.

 

In Malaysia

Living in Malaysia in this modern age is not lucky as some people would think. The luxuries of architectural sensation and delightful cuisine are in no way a mirror to a freedom of expression, conscience and thoughts. You may also think of Dubai and Abu Dhabi, cities rained with capitalistic seduction and satisfaction but not human rights.

Although Malaysia does not have special anti-LGBT law, there are provisions discriminatory and persecutory towards the sexual minorities and thus ultra vires and undermine the secular rule of law. The country is also under threat of rising extremism potentially leading to a violent extremism or terrorism. One of the reasons is because of the fastest “internalization” of Saudi religious teachings into the local education which are very rigid and non tolerant towards LGBTs thus have caused erosion on Malay values.

Gold-carved platinum cards written “Islam” are used in political commerce to win the trust of fickle voters which in fact appealing to many semi-urban and rural Malays. The hypocrisy further creates a strain between the government and progressive faith-based organizations like Komuniti Muslim Universal (KMU) Malaysia and other left-wing organizations that call for inclusive, humanist, nonpatriachal and nonviolent exegesis of religion and human rights.

In that striking hemisphere of voices, fundamentalist groups are stronger in a sense of massive supports of political nexus and finance by the government, gov-backed entities and radical Islamist patrons abroad. However, the stronger they become the louder progressive organizations are to challenge the distorted narrative, like “LGBT Muslims should be murdered and rehabilitated”, with critical thinking and power of ideas. Doing that is not to spawn enmity, but to liberate another part of Muslim society from religious coercion and conviction.

 

Draconian laws against LGBTs

Section 377A of the Penal Code on sodomy is an archaic law inherited from England which had repealed the law. Whereas in Sharia Criminal Offences Act (Federal Territories) 1997 (and other states) stipulates that any man who commits anal intercourse with another man shall be guilty of sodomy.  This is also supported by a fatwa (a decree from Muslim scholars) that describes LGBTs as an inverse “species”.

Yes, the laws may not be enforced strictly by the authorities compared to anti-transgender law because of the quantum of proof to show penetration. Nevertheless, mere presence of the laws reinforces a misconception to the state and local communities on; Firstly, homosexuals are criminals. Secondly, sodomy is synonymous to homosexuality. Thirdly, a hierarchy that values heterosexuality over homosexuality.

Next, in the same Sharia Act, Section 28 criminalizes any male person who is in any public place, wears a woman’s attire and poses as a woman for immoral purposes.

Other than targeting a transgender group, the enforcement by the religious squad vested with a power to raid and arrest is frequently done in mala fide, not in accordance with the Standard Operating Procedures (SOPs). The victims are often humiliated, locked in a male prison, sexually harassed by the religious officers on duty and being judicially tried unjustly.

Clearly, Malaysia has to overhaul it’s neo-colonial and conservative system and prioritize humanity not power or money (very wishful thinking). To subjugate a group of society by a state because of their sexual orientation or gender expression in the borderless world we all breathe is absurd and democratically incorrect. Imagine your governors can charge you of what you did in the bedroom and with whom you naturally fall in love without even wanting to be in that hazardous situation. What is more in Islam, privacy and personal choice are the ultimate safeguard the state or anyone else should protect and should not transcend.

 

Social treatment and intersectional freedoms of sexuality and faith

This is the most important point, LGBTs in Malaysia and everywhere else in the world have to struggle with coming-out. It is very naive and moronic to say that the status quo is fine because the writer views oppression against LGBTs is not glaring or severe as in Uganda, Bangladesh and Saudi Arabia. Its like saying, I saw a kid on the street got beaten by a man, but I didn’t care then I kept walking. As I didn’t see any injury on his face and he was not my child anyway. (But what if that kid is your child?)

First, that does not justify the “un-severe” oppression. Second, the writer didn’t realize because closeted LGBTs don’t tell you what is their sexual orientation. Even so, through effeminate character and personal appearance, LGBT kids and adults face bully, cyber-bully, vilification, public-shaming, discrimination from more masculine, feminine or religious group comprised of their employers, peers, teachers, families, religious leaders and communities.

Meanwhile, people who came out face unimaginable obstacles. I would like to exhibit this by citing the anecdotes of Hazim Ismail and few other Malaysians who fled overseas. They were not just being courageous of revealing their sexuality also  publicly renounced Islam because of the trauma they experienced with the self-righteous Muslims and conclusion they reached based on the irreconciliation of their sexuality with faith.

They further conveyed that the society and peers weaned in the homophobic environment isolated them in school, university, workplace and mosques. The saddest part is, their own biological parents who were raised in the heteronormative upbringing disowned, imprisoned, tortured them in the name of folklore of Sodom and Gomorrah and “what will people say to me about my gay son”. Imams were consulted and given a permission to do some healing rituals on the “doomed bodies” and finally ordered them to repent.

I believe that more young people especially LGBT youth will emigrate from the country if this horrendous reaction of society is not catered prudently. The dilemma is this, a lot of Muslims think they have to exit religion because they are gay, therefore,  unacceptable in the eyes of mainstream society. Even that’s not the case, they just want to free themselves from the Islam-tag and responsibilities imposed by the religion and be themselves far away.

Here comes the role of progressive Muslims to counter the crux of creeping fundamentalism and extremism by a reform. A reform within Islam is urgently required particularly in the interpretive methodology of Quran and Prophetic traditions. I vow that punishments and false perception on LGBTs are echoed from those Islamic sources. It subsequently ties Muslims across the world to be beholden to the ideology for many decades unchallenged.

Orlando’s shooting should be a lesson to Malaysian Muslims. A closeted gay who was taught in “Islam” to hate himself and other LGBTs translated that into action. It is not surprising, hours after the incident went live, some of Malaysians on social media congratulated the shooter for redeeming what is right in Islam. This is like an accomplished mission of fundamentalist Muslims in spreading hate and violence.

A reform is not to make “Progressive” as a new sect in Islam but a cooling force to harmonize the existing progressive values in Islam with the human rights including LGBT rights. For instance, to accept and respect the diversity of sexuality and opinion and be compatible with science and human progression.

 

1951 Convention on the Status of Refugees

Let’s switch the discussion to the international law on refugees. The Convention, as amended by the 1967 Protocol defines a refugee as a person who,

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion …” [1]

Notably, sexual minorities fall within the scope of ”particular social group” [2] and all human beings which include Malaysians have the right to seek asylum in another country in accordance with Article 14 of the Universal Declaration of Human Rights.[3]

 

Must the prosecution come from the state actor?

Seemingly, the author in his article mentioned that to claim a “refugee” status, the prosecution or persecution must only derive from the state actors. I back to differ, cases asserting refugee status based on membership of a particular social group are rampant by claimants who face risks of harm at the hands of non- state actors, other example would be wives abused by their husbands.

Undoubtedly, there is no requirement that the persecutor be a state actor. What the claimants have to prove is the “causal link” where serious discriminatory or other offensive acts are committed by the local populace which is a prosecution, if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.[4]

In Malaysia, the authorities and national leaders do not just approve the intolerance, they also exacerbate the tension by uttering very demeaning remarks [5] [6] and deploying Daesh-kind-of moral police to the ground.

 

In Canada

The writer in the article also questioned on the grant of Canadian court of a refugee status to Hazim Ismail? Here is why ; In 1991, Canada became one of the first Western nations to grant refugee status on the basis of sexual orientation. In the landmark Supreme Court’s ruling, Canada v. Ward,[7] explicitly defined the parameters of the refugee convention the concept of ‘‘particular social group’’ to include sexual orientation within Canadian refugee law.

 

Burden of Proof and freedom of choice

As long as the claimants furnish the court with evidence to prove their LGBT status, the court will reasonably endorse the application. For instances through witness statements, photographs or other documentary evidence and in Ireland and the UK, medical reports and witness testimony may be used to support the applicant’s sexual orientation.[8] [9] In addition, Malaysian LGBT scenario should be construed disjunctively with other cultures, which indeed alarming. [10]

In conclusion, with all forms of domestic injustices aforementioned, a person’s fundamental rights under the international law shall never be encroached by the authoritarian governments. Other democratic governments’ efforts for humanity should be commended dearly. Malaysia should step up and champion human rights as portrayed by it’s neighboring country, Vietnam in decriminalizing LGBTs.

Lastly, fleeing LGBTs from Malaysia should have a choice to live where they want in the absence of fear. To LGBT Muslims, spread your wings up high because you can be yourself and be Muslim.


[1] Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150, Art. 1A(2).

[2] UN High Commissioner for Refugees, UNHCR GuidanceNote on Refugee Claims Relating to Sexual Orientation and Gender Identity, 21 November 2008

[3] UDHR Article 14.1: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

[4] Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees

[5] Joseph Patrick McCormick. August 20, 2015. “Malaysia will not protect LGBT people because of Islam”, http://www.pinknews.co.uk/2015/08/20/malaysia-will-not-protect-lgbt-people-because-of-islam-says-prime-minister/

[6] Shazwan Mustafa Kamal. September 11, 2015. “LGBT community will never have equal rights in Malaysia, tourism minister says”, http://www.themalaymailonline.com/malaysia/article/lgbt-community-will-never-have-equal-rights-in-malaysia-tourism-minister-sa

[7] This Supreme Court ruling identified sexual orientation as an immutable (innate or unchangeable) per- sonal characteristic, therefore, declaring gay and lesbian refugee claimants as belonging to a ‘‘particular social group’’ (LaViolette 1997).

[8] Sabine Jansen and Thomas Spijkerboer, Fleeing Homophobia: Seeking Safety in Europe, COC NederlaNd & VU UNiVersity amsterdam 71 (2011), available at http://www.rechten.vu.nl/nl/Images/Fleeing%20Homophobia%20report%20EN_ tcm22-232205. pdf [hereinafter Fleeing Homophobia].

[9] SW (lesbians—HJ and HT applied) Jamaica v. Secretary of State for the Home Department, CG [2011] UKUT 00251(IAC), United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 24 June 2011, available at: http://www.unhcr.org/ refworld/ docid/4e0c3fae2.html [accessed 9 July 2011] [hereinafter SW Jamaica]

[10] Tonewall, No Going Back: Lesbian and Gay People and The Asylum Sytem, (2010) available at http://www.stonewall.org.uk/ what_we_do/research_and_policy/2874.asp [hereinafter no going back].