Many of us in the Malaysian Alliance of Civil Society Organisations in the UPR Process (MACSA) are lawyers and leading academicians, and the recent article by Eric Paulsen titled ‘The sun has set on Victorian-era laws’ gives us all pause.
Eric would have us believe that our nation of Malaysia having freed herself from the shackles of British colonialism must now rid herself of sundry so-called ‘oppressive’ laws enacted during the time our ancestors had to endure the same.
These include sections of the ‘archaic’ Penal Code on sodomy (sections 377A and 377B), enticement of a married woman (section 498), insulting modesty (section 509) and of course, the enactment he is currently being charged under for wantonly accusing Jakim of promoting extremism by the preparation of Friday sermons, the Sedition Act 1948.
Our first reaction upon reading his piece was to dismiss it. After all, here is a lawyer well known for provoking racial and religious tension as well as needless controversy, with his slander of not just government agencies but also other CSOs and would rather abolish laws he has violated than defend himself by disproving their elements in a fair trial. His own dismal record and virtually non-existent credibility as a law advocate should speak for itself.
However, we are mindful of the unfortunate fact that uneducated (to borrow the word of our current Prime Minister, Tun Dr Mahathir Mohamed) elements of our society give credence to the ramblings of this individual, hence the need to respond with a solid rebuttal, and of course, rebuke of the arguments advanced by him in his writing.
First needing correction is his slanted portrayal of our nation. Malaysia is not Britain, Victorian era or otherwise. She is a state in a region known as the Nusantara, with her own history as a federation of hitherto independent Malay Muslim Sultanates, all of which had laws and jurisprudence based upon the teachings of Islam, including hudud of course.
Most if not all of these were displaced by the coming of the British, who then not only introduced their own laws but legal philosophy in their place, causing tremendous disruption to the national make up and Islamic character of these states. Having now attained their independence in the federation that is Malaysia, whose Constitution by Article 3(1) proclaims Islam as their common religion, they now strive diligently to recover the Islamic elements of administration lost as a direct result of prior colonial rule.
Yet every time they try, they meet opposition. Whether it is opposition to the legislative expansion of syariah courts long existing in these lands prior to the coming of British colonialists via the proposed amendment of the Syariah Courts (Criminal Jurisdiction) Act 1965 or the ring fencing and reduction thereof via the effective annulment of Article 121(1A) of our Constitution in the recent Federal Court decision in the Indira Ghandhi case, the antagonism towards a native legal system based on Islam in favour of a secular one based on English law is only too real more than 60 years after our independence as a nation.
So, at the very least, we should get to keep those elements of that secular system suited to us as a civilisation, and that includes laws against sodomy, enticement, outraging modesty, defamation and most of all sedition.
Malaysia is, by Article 4 of her Constitution, a place where the rule of law prevails, and laws are enacted, retained, amended or repealed according to her own particular circumstances. That is the very essence of national sovereignty, a concept upon which the sun still shines bright, although yes we do agree with Eric that it has set upon the former British Empire.
Thus, Eric would do well to have due regard for this, instead of insulting us all by supporting the bullying tactics of the current British Prime Minister Theresa May who has thought fit once again to intervene in the affairs of not only Malaysia but other former British colonies still struggling to shake off the legacy her ancestors have wrought upon them.
Eric’s suggestion that we do away with laws on the mere fact that they were introduced during British rule based merely on the premise that they were introduced during the colonial era is so grossly simplistic, it is pitiful as well as obnoxious. News flash: Malaysia drove out colonialism decades ago.
The accorded human rights to LGBT to not to be discriminated against, abused or harmed should not be mixed with Malaysia’s duties and obligations to ensure the health of her population is taken care of.
Criminal law on homosexuality merit a review on its impact towards public health. Data from UNAIDS showed that in the Middle East and North Africa (MENA), where most Muslim countries are located, and where the majority uphold criminal law with regard to homosexuality, there were an estimated 230,000 people living with HIV which gives an adult HIV prevalence of 0.1%. At present, HIV prevalence in Muslim majority countries is lower than that of non-Muslim countries.
And as Eric tried to justify the need to repeal the so-called British law based on colonialism, just over last week, a UN report revealed that men with same-sex sexual partners are 28 times more likely to contract HIV than their heterosexual counterparts despite a radical reduction in new infections among gay men in Western countries. The report stated that although the overall annual number of new HIV infections dropped from a high of 3.4 million in 1996 to 1.8m last year, gay men and men who have sex with men remained most at risk of contracting HIV, along with female sex workers, drug users and transgender women.
That sun Eric speaks of has set in a time long gone and if laws from then were retained, it is because Malaysians have made an independent judgement upon them and have decided that they serve the interests of contemporary society.
If Eric wishes to argue otherwise, then we invite him to advance fact-based reasons as justification, instead of appealing to false logic based on faux contempt for a bygone age.
JOINT STATEMENT BY:
Azril Mohd Amin, Chief Executive, CENTHRA and Chairperson, MACSA or the Malaysian Alliance of Civil Society Organisations in the Universal Periodic Review (UPR) Process.
Associate Professor Dr. Rafidah Hanim Mokhtar, President of The International Women’s Alliance for Family Institution and Quality Education (WAFIQ) and Co-Chairperson, 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.
*Also published in The Sun Daily.
