Bridging Gaps and Hopes: Malaysia’s National Human Rights Commission and Rights Related to SOGIESC
- 33 Downloads
As we approach this major historic milestone in celebrating the 50th anniversary of ASEAN’s founding, the newly established ASEAN Economic Community envisages to continue fulfilling its ambition in advancing the breadth of economic integration and growth across the region. In contrast, the same echoes of advancement in economic development across Southeast Asia is hardly paralleled in ASEAN’s commitments towards human rights, especially under the ambit of sexual orientation, gender identity, and expression of sex characteristics (SOGIESC) matters.
This chapter aims to analyse the successful milestones, best practices, and challenges of the National Human Rights Institutions (NHRIs) across various Southeast Asian countries in their efforts to promote and protect SOGIESC rights—with a particular focus on Malaysia. As an economic powerhouse in the region, Malaysia has been particularly poor in recognizing SOGIESC rights. While the international community has progressed considerably in terms of putting SOGIESC-related rights on platforms of human rights protection mechanisms, Southeast Asian countries, by far and large, remain firmly in opposition to this trend.
On the other hand, the sensitivity of lesbian, gay, bisexual, transgender, and intersex (LGBTI) rights in domestic spheres remains high in, at the very least, certain sections of society in every ASEAN member state. Different patterns of persecution of LGBTI people at the national level leaves sexual minorities at risk to discrimination and deprivation of fundamental rights. Weak enforcement of protective laws and high levels of stigma also pose a significant challenge to LGBTI individuals being able to freely claim their rights. This also constitutes an impediment to the progress of HIV prevention, as stigma and criminalization impacts a person’s ability to take charge of their health or access health services.
Since the advent of the Yogyakarta Principles, there are a growing number of initiatives from NHRIs in Southeast Asia to tackle the rights violations and discrimination faced by people of diverse SOGIESC. However, there are still members of various SOGIESC communities who lack proper understanding of the complaint systems of their NHRIs. In short, there are promising potentials for Southeast Asian NHRIs to have greater appreciation and understanding for the rights and risks of people of diverse SOGIESC.
- 76 Crimes. 2017. Malaysian group teaches how to report on trans people, https://76crimes.com/2017/04/28/malaysian-group-teaches-how-to-report-on-trans-people/.
- APTN, USAID, UNDP, WHO. 2010. Blueprint for the Provision of Comprehensive Care for Trans People and Trans Communities in Asia and the Pacific.Google Scholar
- ASEAN People’s Forum. 2011. Statement of Representatives to the ASEAN Civil Society Conference/ASEAN People’s Forum to the Informal Meeting Between ASEAN Leaders and Civil Society, Indonesia.Google Scholar
- Asia Pacific Forum. 2015. SUHAKAM in Briefing document for the workshop on the role of National Human Rights Institutions in promoting and protecting the rights of LGBTI in Asia and the Pacific, pp. 15–16.Google Scholar
- ———. 2016. Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics, Thailand.Google Scholar
- Asian NGO Network on National Human Rights Institutions (ANNI). 2016. Report on the Performance and Establishment of National Human Rights Institutions in Asia, Bangkok: Forum Asia, p. 14.Google Scholar
- Australian Human Rights Commission. 2014. Pride History Group, Presentation to the Homosexual Histories Conference. Available at www.humanrights.gov.au/news/speeches/homosexual-histories-conference-2014-pride-history-group-0.
- Cheong-Wing, C, Barry, W, and Stanley Y. 2011. Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, UK.Google Scholar
- Committee on Economic, Social and Cultural Rights. 2011. Concluding Observations E/C.12/DEU/CO/5, para. 26, Germany.Google Scholar
- Committee on the Rights of the Child. 2015. Concluding Observations: CRC/C/CHE/CO/2–4. Switzerland, para. 43b.Google Scholar
- Committee on the Rights of Persons with Disabilities. 2015. Concluding Observations: CRPD/C/DEU/CO/1. Germany, paras. 37–38.Google Scholar
- Devasahayam, T. 2009. Gender Trends in Southeast Asia: Women Now, Women in the Future.Google Scholar
- Fortify Rights interview with Ms. Nurul Hasanah and Ms. Lau Sor Pian, SUHAKAM Officer, 10–12pm, 25 May 2017, Malaysia.Google Scholar
- Free Malaysia Today. 2017. SUHAKAM calls for SOP on transgender prisoners, 30 May 2017, Malaysia. Available at http://www.freemalaysiatoday.com/category/nation/2017/05/30/suhakam-calls-for-sop-on-transgender-prisoners/.
- Government of Malaysia, Laws of Malaysia. 1965. Act 355: Syariah Courts (Criminal Jurisdiction) Act, Section 2, Malaysia. Available at http://www.agc.gov.my/Akta/Vol.%208/Act%20355.pdf.
- ———. 1976. Act 574: Penal Code, S377, Malaysia.Google Scholar
- ———. 1999a. Act 597: Human Rights Commission of Malaysia Act, Section 5(1).Google Scholar
- ———. 1999b. Act 597: Human Rights Commission of Malaysia Act, Section 5(2), 19(1).Google Scholar
- Human Rights Watch. 2015. Malaysia: Court Ruling Sets Back Transgender Rights.Google Scholar
- International Commission of Jurists and International Service for Human Rights. 2006a. Yogyakarta Principles: Preamble.Google Scholar
- ———. 2006b. Yogyakarta Principles: Principle 3.Google Scholar
- International Federation of Journalists. 2015. Country Report: “Media and Gender in Malaysia” Part of the IFJ Media and Gender in Asia-Pacific Research Project. Available at http://www.ifj.org/uploads/media/MALAYSIA.pdf.
- International Lesbian and Gay Association. 2015. How to be a Great Intersex Ally: A Toolkit for NGOs and Decision Makers, p. 23, Switzerland.Google Scholar
- Jabatan Kemajuan Islam Malaysia (JAKIM). 1982. Fatwa Issued by the National Fatwa Council Prohibiting Sex Reassignment Surgery, Malaysia.Google Scholar
- Justice For Sisters. 2017. Brief Media Analysis, https://justiceforsisters.wordpress.com/2017/03/01/brief-media-analysis-sameeras-case-justiceformeera/.
- Malay Mail Online. 2015. Najib: Putrajaya will defend human rights, but only in the context of Islam, Malaysia. Available at http://www.themalaymailonline.com/malaysia/article/najib-putrajaya-will-defend-human-rights-but-only-in-the-context-of-islam.
- Mohd Izwan bin Md Yusof, Muhd Najib bin Abdul Kadir, Mazlan bin Ibrahim & Tengku Intan Zarina. 2014. Malaysian Muslim Gay and Lesbian Community’s Perspective on The Concept Of Domestic Partnership and Marriage In The Quran, Malaysia.Google Scholar
- Osborne, M. 2000. Southeast Asia: An Introductory History. Allen & Unwin, UK.Google Scholar
- Paris Principles. 1991. Principle 6.3: Monitoring functions.Google Scholar
- Peletz, M. 2009. Gender Pluralism: Southeast Asia Since Early Modern Times, New York, pp. 58–59.Google Scholar
- Singapore Misuse of Drugs (Amendment) Act 2012.Google Scholar
- Suruhanjaya Hak Asasi Manusia Malaysia (SUHAKAM). 2009. SUHAKAM’s Interventions at the Workshop on the Role of the NHRs in the Implementation of the Jogjakarta Principles. Available at www.asiapacificforum.net/issues/sexual_orientation/downloads/apf-regional-workshop-may-2009/Malaysia.doc.
- ———. 2010. Annual Report, Malaysia pgs 16 and 67.Google Scholar
- ———. 2011. Annual Report, Malaysia, pg 76.Google Scholar
- ———. 2012. Annual Report, Malaysia, p. 110.Google Scholar
- ———. 2013. Report of the Complaints and Inquiries Working Group: LGBT, Malaysia.Google Scholar
- ———. 2014. Areas of Work: Right to Health in Prison, Malaysia.Google Scholar
- ———. 2015a. Annual Report, Chapter 1: Report of the Policy, Law and Complaints Group, Right to Health in Prison, Malaysia, pgs 21–22.Google Scholar
- ———. 2015b. Annual Report, Malaysia, pgs 44–45; pgs 107 and 144.Google Scholar
- ———. 2015c. Press Release: SUHAKAM Opines that Fundamental Rights and Universal Freedoms are an Integral Part of Islam, 20 August 2015, Malaysia.Google Scholar
- ———. 2016a. Annual Report, Chapter 1: Research on Transgender, Malaysia, p. 27.Google Scholar
- ———. 2016b. Annual Report, Malaysia, pg 27.Google Scholar
- ———. 2017. The Right to Health in Prison: Results of A Nationwide Survey and Report, Malaysia p. 78–82.Google Scholar
- Syariah Courts (Criminal Jurisdiction) Act 1985, Malaysia.Google Scholar
- Syariah Judiciary Department Malaysia (JKSM). Available at http://www.jksm.gov.my/.
- Syariah Justice Department. 1992. Syariah Criminal (Negeri Sembilan) Enactment 1992, Section 66, Malaysia.Google Scholar
- Tan Beng Hui. 2008. Moral and Sexual Offences in Malaysia: The Role and Impact of the Syariah Criminal Offences Enactments. Paper presented at the Second Conference of the Kartini Network, Bali, Indonesia.Google Scholar
- The Malaysian Insider. 2016. 3rd January, Malaysia. Available at www.themalaysianinsider.com/malaysia/article/were-turning-back-human-rights-clock-if-nsc-bill-becomes-law-says-hasmy.
- The Star. 2008. Fatwa on Tomboy, Malaysia. Available at http://www.thestar.com.my/news/nation/2008/10/24/fatwa-on-tomboys/.
- The Washington Blade. 2015. Malaysia Prime Minister: Government Will Not Defend LGBT Rights, Malaysia. Available at http://www.washingtonblade.com/2015/08/21/malaysian-prime-minister-government-will-not-defend-lgbt-rights/.
- Thi Thu Huong Dang. 2005. A Comparative Analysis of the Strategies the New Order and UMNO Regimes in Indonesia and Malaysia adopted to deal with Islam in 1965–1998.Google Scholar
- Today Online. 2005. No Homosexuals in Malaysian Navy, Says Chief, 25 February 2005.Google Scholar
- United Nations Commission on Human Rights Resolution. 1992/54 and General Assembly resolution 48/134.Google Scholar
- United Nations Development Programme, Asia Pacific Forum, Asia Pacific. 2016. Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics, Thailand.Google Scholar
- United Nations Human Rights Council. 2013. Report of the Working Group on the UPR – Malaysia, Switzerland. Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G13/188/48/PDF/G1318848.pdf?OpenElement.
- United Nations Office of the High Commissioner of Human Rights. 1993. Principles relating to the Status of National Institutions (The Paris Principles), Adopted by General Assembly Resolution 48/134 of 20 December 1993, Switzerland.Google Scholar
- Vanja H. 2015. Sexual & Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge.Google Scholar
- WHO. 2014. Proposed declassification of disease categories related to sexual orientation in the International Statistical Classification of Diseases and Related Health Problems (ICD-11), United States of America.Google Scholar
- Yew-Foong Hui. 2013. Encountering Islam: The Politics of Religious Identities in Southeast Asia, p. 129, Malaysia.Google Scholar
- Yik Koon Teh. 2001. Mak Nyahs (Male Transsexuals) in Malaysia: The Influence of Culture and Religion on their Identity, Malaysia.Google Scholar