Recently, Malay Mail highlighted the legal case of that controversial book entitled, Gay is OK! A Christian Perspective in “Why Court of Appeal upheld ‘Gay is OK!’ book ban in 2-1 decision” (January 4, 2023).
The article looked into the judgments of both the High Court (the court of first instance) – where the case was initially heard as a matter of judicial review (i.e., examination of the powers vested in the executive branch of government as to its legality under primary and secondary legislation made by and in Parliament, respectively, as the legislative branch) – and the Court of Appeal (the appellate court) which embodied the “judicial review” of the judicial review.
With the Court of Appeal doing the nation a great service in reversing the decision of the High Court as to the ministerial ban of the book, the Federal Court (the apex court) has been scheduled to hear the application by the complainants (i.e., the publisher) for leave to appeal on February 28, 2024.
The case is of importance due to its critical nature as involving very sensitive matters/issues affecting the well-being and being of the nation.
As the book concerns the promotion of homosexuality in Malaysia (even if from a theological/religious perspective), it’s vital that the government exercised its duty and responsibility in issuing the necessary ban as a pre-emptive measure.
It bears reiteration and recapitulation that freedom of expression under the Federal Constitution as embodying the Malaysian context (acuan Malaysia) can’t be equated with Western-style secularism for which the constitutional rights and entitlements are either:
“absolute” (albeit undergoing temporal and diachronic revisions through time and space – evolution) such as in the form of the US Constitution; or
where in the absence of express prohibitions under statutory law, common law represents the residual liberties which shouldn’t be encroached upon as exemplified by the British Constitution in terms of judicial safeguards.
As the promotion of homosexuality is contrary to the character of the nation with Islam as the established and official religion of the Federation, the continuing existence of such a book as Gay is OK! A Christian Perspective can’t go unchallenged.
For the government to allow the book to legally “exist” is essentially to allow and enable contrarian viewpoints that effectively challenge and seek to challenge (either explicitly or implicitly) the sanctified status of Islam as the religion of the land (with other religions allowed to be practiced freely and uninhibitedly) – wherein homosexuality and any associated values are expressly forbidden – to be unconstrained and unrestrained which will then have negative and undesirable repercussions either in the short-term or at least in the long-term when the effects have seeped deep enough within the fabric of society.
The Home Minister, therefore, was simply fulfilling his mandate (amanah) to the nation and society and as required under the Federal Constitution and legislation by looking at the nature of the book and its wider impact (i.e., the “big picture”) should the book be legally allowed for distribution and dissemination.
Although the High Court judge who ruled in favour of the publication whereof the ministerial order had been made under Section 7(1) of the Printing Presses and Publications Act/PPPA (1984) by the Minister of Home Affairs YB Saifuddin Nasution had clearly and cogently outlined the legal/judicial rationale (ratio decidendi) based on carefully considered circumstances in determining the legality of exercise of executive powers, it’s humbly submitted that it fell short of what the Court of Appeal correctly stated as the requirement of a hypothetical “reasonable minister” test.
The esteemed High Court judge stated that the home minister had failed to justify the book ban by adducing and demonstrating evidence of “actual prejudice to public order”.
Furthermore, the High Court judge noted that the book had been in existence in the absence of State intervention for more than seven years after the publication of the book in September 2013.
Since then, there’s been no evidence of any untoward incidents as well as of any reports lodged by any member of the public or persons of interest to say the book is likely to pose a threat to “public order, public morality or public interest”.
Firstly, with all due respect, it’s hereby humbly submitted that under Section 7(1) of the PPPA (1984), there’s no (absolute or unconditional) requirement for the Home Minister to adduce, demonstrate or prove evidence of an actual threat to “public order, public morality or public interest”.
Section 7(1) which comes under “Undesirable publications” reads as follows:
“If the Minister is satisfied that any publication contains any article, caricature, photograph, report, notes, writing, sound, music, statement or any other thing which is in any manner prejudicial to or likely to be prejudicial to public order, morality, security, or which is likely to alarm public opinion, or which is or is likely to be contrary to any law or is otherwise prejudicial to or is likely to be prejudicial to publicinterest or nationalinterest, he may in his absolute discretion by order published in the Gazette prohibit, either absolutely or subject to such conditions as may be prescribed, the printing, importation, production, reproduction, publishing, sale, issue, circulation, distribution or possession of that publication and future publications of the publisher concerned”.
The proper requirement test would have been, it’s humbly submitted here, for a judge to consider whether the Home Minister had exercised his discretion conferred under Section 7(1) arbitrarily (i.e., without any constitutional or legal basis).
As it is, there are pre-existing laws in place criminalising homosexual acts/practices (in its essence) as contained in the following provisions under the Penal Code:
Section 377A – carnal intercourse against the order of nature; and
Section 377B – the provision of punishment for committing carnal intercourse against the order of nature.
Since such laws have never been challenged as to its constitutionality (in due course, that is), these laws which remained in place are legally binding and in force and, thus, relevant and applicable so that the decision-making process of the Home Minister is not without proper constitutional and legal basis.
It’d have been the reverse had the Home Minister banned a book promoting, e.g., the medical (or pseudo-medical, depending on the viewpoint) practice of homeopathy as contrary to the public interest.
As homeopathy is not an unconstitutional or illegal practice either under the Federal Constitution (explicitly or implicitly) or any laws of Malaysia and instead recognised under the Traditional and Complementary Medicine Act (2016), such a ministerial act without justification would have been deemed as “irrational” (i.e., ultra vires – beyond the scope of executive power – even when backed by alternative scientific evidence).
Secondly, with all due respect, it’s humbly submitted that although the book only concerned a Christian theological (i.e., progressive or liberal or otherwise extreme liberal) perspective on homosexuality, it nevertheless entails the promotion of a practice and culture that’s not only criminalised but also explicitly and implicitly forbidden as to its basic orientation in Islam and mainstream Malaysian Christianity as a matter of objective categorisation (ipso facto, i.e. in and of itself – of which the legal, political and social treatment is a different matter) as an undisputed fact.
Therefore, a book that goes beyond the descriptive (e.g., most crucially, the experience of a struggling homosexual or that of a gay Christian coming to terms with a conflicted conscience but who is decidedly celibate) and is in reality engaging in the prescriptive in extremis (to the extreme), especially without constraints (i.e., aligning the basic orientation with the lifestyle or practice), is subversive of and prejudicial to the national and societal values in the context of Malaysia.
What next, then?
The promotion of the evil of transgenderism (in the future, as the next step) – which especially will endanger or place our children at substantial risk of psychological, emotional and physical damage/harm?
Hence, with all due respect, it’s humbly submitted that for the judge to legally opine that the minister “cannot be accepted to be representing an accepted view of either right or wrong by the right-thinking members of the society as a whole of the country in the recent times” represents a slightly misplaced optimism as regards to the Malaysian context (acuan Malaysia) which is critically different from Western-style secularism.
Homosexuality simply can’t be equated (e.g., dynamic equivalence) with or be in the same category as the “evil” of non-marital relations (e.g., cohabitation) or the vice of alcohol consumption.
As such, what may have become “accepted”/”received” or an even subaltern “norm” (i.e., of a fringe community) vis-à-vis homosexuality can’t be extrapolated to or separated from the mainstream as a whole without prejudicing and impinging national and societal values.
This is because homosexuality, unlike non-marital relations and alcohol consumption, strikes at the heart of the “natural law” that governs Malaysian society. Natural law is what gives substance to the Malaysian context (acuan Malaysia).
As it is, homosexuality, at its core, is contrary to and disrupts (the call and order) “nature” (diluar tabii) as recognised by and embodied in aforementioned Section 377A of the Penal Code and, therefore, goes beyond mere “excess” (as represented by non-marital relations and alcohol consumption).
Whilst non-marital relations and alcohol consumption can be contained by legislative constraints whereby the former by way of non-recognition of legal rights and the latter by way of licensing conditions, the policy issue concerning homosexual couples can only go one way, i.e., forward – towards greater legal recognition.
As the case of Singapore – known for its careful and calculative calibration/balancing of its conservative moral code with a liberal veneer – has demonstrated, the island republic has had to amend its constitution upon granting legal/official recognition to gay (man-to-man) sex.
That is, Singapore, despite being known as more liberal than us, still had to ensure that legal recognition of gay sex doesn’t lead to the demand for recognition of same-sex marriage, i.e., the placement of gay couples on par with heterosexual couples which is the norm in all societies, universally and without exception.
Promotion of homosexuality, then, not only offends sensibilities but challenges the very order and system by which Malaysian society is organised and governed.
Even where allowing for the promotion of homosexuality in Malaysia will not necessarily lead to demands for legal partnerships and marriage solemnisations which come under the auspices/purview of the State, it remains a challenge and offense to the sanctity of Islam as the official and established religion and, by inclusion and extension, the sensibilities of Muslims as constituting the majority and dominant community on the whole who here are also represented by the Home Minister himself (emphasis).
Allowing for the promotion of homosexuality would drive a wedge within the nation and society – a subversive and contradictory situation.
In the final analysis, allowing for homosexuality to be promoted (even based on supposedly particular theological grounds which ostensibly involves Christians only but which would also encourage extreme liberal Muslims to do likewise, etc.) is to effectively pave the way for Western-style secularism to take root in the nation that’ll eventually result in open challenge to the given constitutional and legal order and framework of the country.
By extension, this would result in the deepening of polarisation in the country – fraught as it is already by the ethno-religious divide between the supposedly majoritarian and minoritarian communities.
It is this bigger picture and long-term view involving matters prejudicial to the “public order, public morality or public interest” that the Home Minister has had to consider in providing the assurance (memberi jaminan) that despite the change of government, there’s continuity in terms of the basic and fundamental constitutional and legal order and framework.
Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.