JUSTICE FOR LGBTS, JUSTICE FOR MALAYSIA

Why is justice so far from those who really need it?

by Pang Khee Teik

“Today I withhold this keris. But if one day I can't tolerate anymore, I will use the keris against the enemy of this land!”

– Speaker at Anti-LGBT Rally, 12 Apr 2012

When the speaker at the Anti-LGBT rally talked about killing whoever he imagined is “the enemy of this land”, and by enemy he implied anyone who advocates for the human rights of LGBTs, the authorities looked the other way. But when Seksualiti Merdeka appealed for understanding, compassion and equality, it was deemed a threat to the national security and was banned by the police.

Have we gotten so used to threats that we are now threatened by compassion? Or could it be that we can no longer tell the difference between those making threats and those upholding the law? Look at what is happening at Dataran Merdeka this week. By brute force, the authorities have attempted to subdue those who dare to question their authority. If that fails, they will try to snuff out our hope for change by applying administrative terrorism.

It’s not just the police and the DBKL. I’m afraid the courts are no better. Seksualiti Merdeka’s judicial review of the ban was thrown out by a judge who insisted that the police’s power cannot be reviewed, effectively allowing the police a caveat to abuse its power unchallenged.

Last week, a teenager was charged for assaulting a Mak Nyah with a metal rod.  He was fined a mere RM400. Meanwhile, when Mak Nyahs around the country are arrested under Syariah offences for expressing themselves and not hurting anybody, they are fined RM1000 each and sent for counselling. We try to rehabilitate these Mak Nyahs for being too gentle, but these men who are so insecure about their masculinity they need to prove it through violence, we let them out to play after a smack on the hand.

So, at the forum titled “Homosexuality: A right or a crime?” at International Islamic University Malaysia two weeks ago, when the question was posed by an audience, “Aren’t the laws we already have enough to protect the LGBTs? We have laws for murder, for physical assault, for wrongful termination at work, etc. Are they not enough?” I can say, the answer is no.

In this article, I am less interested in what JMM said than in how they get away with what they say. I am interested in how the government of the day, which is supposed to be neutral, takes the side of the bullies against the bullied.

With bullies running the country, many LGBTs find themselves hiding further and further beyond the margins of the legal, beyond the reach of the laws that deem them unfit for society. Making a person think he deserves no justice is NO different from denying him justice. And that is how many LGBTs are denied one of the most fundamental rights of being human: the right to justice.

THE BULLY’S CHARTER

Malaysians don’t seem to understand that a just system is one in which minorities are protected from the majority, not the other way round. The most important minority is the minority of one. And if the law protects this minority against the tyranny of the majority, then it protects everyone. All of us!

Unfortunately, that is not the case in Malaysia. Not only does Malaysian justice not care about inequality, it seems to thrive on it. Some laws in Malaysia are effectively a bully’s charter.

Case in point: there is no law against homosexuality in Malaysia yet many believe it is a crime to be gay and lesbian. People may cite penal code “377a” and “377b”. But according to the wording of the statute, the crime is committed when ANYONE introduces his penis into a mouth or anus. Yes, ANYONE. I’m sorry to break it to you heteros: it is a crime for a husband to receive blowjobs from a wife too. You like this law so much, how about we knock down all your bedroom doors now and check?

Clearly both heterosexual and homosexual oral and anal sex are illegal but where the public and the state are concerned, it is a law against homosexuality. This is because “377” only targets men who have sex with men. If that is not discriminatory, then I don’t know what is.

That’s why many LGBTs don’t bother to seek redress to injustice they suffered. They are simply too disempowered by the perceived illegality of their very existence. They are too busy hiding from an imaginary law.

“YOU ARE A DEVIL!”

I know of a girl in Sabah whose mom found out she was in love with another girl. Her mom hit her repeatedly till she was bleeding. She was then locked up in the house for four months. The only times she was let out of the house was when she was sent for counselling during which she was told, “You are a devil. You are a devil.” There are many other girls like her in Malaysia locked up by parents because they fell in love.

I know of a teenaged guy from Penang who was kicked out from the home when his parents cannot accept that he wants to be a man, not the girl he was born as. For being born that way, many transgender folks are kicked out from homes by the very people who gave birth to them that way. Where are the laws to protect children from their own parents? How will they even know what the laws are?

Even those old enough to know the laws can’t do anything about it. I know of a lecturer from Petaling Jaya whose friend threatened to expose his sexual orientation to the university unless the friend was rewarded to keep quiet. He paid up. He had been discreet about his sexuality because he feared such a situation. But his secret also made him vulnerable. Many gay employees and bosses, professionals and civil servants, go to work daily afraid of being exposed. After years of alienation, they may have found comfort in a relationship. Yet this relationship threatens to ruin them. So many give in to blackmailers. How can they seek justice without risking exposure?

I know of a Mak Nyah from Melaka who was arrested for “cross-dressing” and was kicked by the arresting officers until she fell into a coma. She was persuaded to charge them for assault, but in the end, she changed her mind. She wasn’t sure if anyone could guarantee her safety from further assaults by these officials. Many Mak Nyahs suffer physical, emotional, sexual abuse at the hands of religious officers and police officers. Where are the laws to protect them from being abused by law enforcers?

Many LGBTs are spat at, insulted and punished as if we are worse criminals than the corrupt politicians who rob whole countries dry. Why would we be foolish enough to dream that the country would help us?

Once you are betrayed by your own parents, by your bosses, by your friends, by your own country, you will find it hard to trust anyone again. Once you hear about how LGBTs are beaten senseless by law enforcers, as an LGBT you will find it hard to trust the laws again.

WHERE ARE THE LAWS?

The laws are there. But they’re out of reach.

Living in a country where justice exists – but not for you – is like growing up in a family where love exists – but not for you. For many LGBTs, such countries and such families are part of our reality.

Both conditions form a vicious circle out of which there seems to be no escape. In order to deserve love, we pretend to be someone else. In order to maintain the pretence, we keep quiet in the face of injustice. By pretending and keeping quiet, we find ourselves at the mercy of those who take advantage of us. Thus more pretending, more keeping quiet, more being taken advantage of.

When I mentioned at the Islamic University forum how the justice system have failed LGBTs, I was offered this reply by a panellist: “Do we not treat criminals different from non-criminals?”

Like many Malaysians, she accepts unquestioningly that being an LGBT is a crime. She called it an immorality but never explained how it is immoral. Throwing children out from homes, blackmailing and beating up mak nyahs are just different ways of treating these “criminals”. Never mind that nobody should be called a criminal until proven guilty. Never mind that throwing minors out of homes, blackmailing, and physical assault are crimes in themselves. Being an LGBT must be a crime so great that others are justified in perpetrating further crimes upon us.

No wonder some Malaysians think it is okay to make violent threats and get away with it. Because they can.

DIFFERENT LANGUAGES

At the end of that forum that night, it occurred to me that while both sides of the debate referred to the laws this and the laws that, we actually meant completely different things. When we referred to “the laws”, we were thinking of an instrument that protects people. When some people refer to “the laws”, they were thinking of an instrument that punishes people.

This disparity reveals the opposing philosophies: people as innocent until proven guilty vs people as inherently guilty, in need of control and guidance from the state. One’s justice is fairness, equality, protection of rights. Another’s justice is vengeance, a show of might, reminding the minorities to toe the line.

Our words sound the same but they mean such different things that we are practically speaking different languages from each other. We might as well be talking to ourselves. Perhaps we are, and that’s the problem.

We need to introduce Malaysians to a radical concept: There is more than one definition to a word. More than one side to a story. More than one way to run a country.

More radical still: The state’s job is to facilitate as neutral as possible a space in which all definitions, all sides and all the different ways can dialogue.

That is why we need to get rid of discriminatory laws. We also need to send a stronger message to those who use violence, who threaten with violence, who endorse violence, that it is never okay. Fines and prison time won’t change them. But education may. Too many Malaysians display shocking ignorance about the way the universe and the human body work. That they are in the parliament is even more depressing. They are walking proof that what we need is a revolution in education.

If we just clean one thing at a time, we are practically doing janitorial work. We also have to reform the very fundamental ways we understand governance, democracy, justice. Without a paradigm shift, we are just cleaning up this paradigm’s shit.

FIGHTING FOR THE SAME

Whether it is the indigenous peoples in their ancestral lands or the Occupy Dataran folks at Dataran Merdeka or the students at their universities, the increasing scuffles with the authorities reveal today that the struggle for justice is not peculiar just to LGBTs. They are reflections of how far justice is from those who truly need it.

We are stuck with pleading for justice from the very ones who have perverted justice. It is like the grass begging for mercy from the grass cutter. No thanks.

We need to believe that we are first the people, REGARDLESS of sexual orientation and gender identity. We need to take back the act of defining words that are important to us. We need to tell our stories. We need to stake claim to all the public spaces till they belong to everyone again.

I applaud everyday Malaysians who tirelessly champion for the changes we need in this country. Indigenous peoples, refugees, students, the poor, minorities, LGBTs, women, political dissidents, religion believers, voters, we are fighting for the same: to be seen as human first. What you believe makes you human and what I believe makes me human are just as important.

The real enemy of this land is inequality. There is no more important struggle today than the struggle for equality. It is by recognising we are all equal before the law that the democracy for which we fight becomes truly meaningful.