Social IssuesSexuality

  • Author Emilia Ting, Dr.nabeel Mahdi Althabhawi
  • Published December 12, 2021
  • Word count 1,076

In recent years, same-sex relations, activity and marriage have been legalised in a number of countries such as Argentina, Australia, Canada, France, Germany and New Zealand. Such action of legalising indicates that the acceptance of people on the issues of LGBT (lesbian, gay, bisexual and transgender) has increased globally. Nevertheless, the debate among human rights activists and the government on the issue of LGBT is not common anymore in Malaysia. The issue was further heated recently when Malaysian transgender entrepreneur, Nur Sajat fled to Thailand and Australia to escape from the conviction by the religious authorities. Nur Sajat is wanted by the Malaysian government as she has been accused of insulting Islam by dressing as a woman. Nur Sajat’s case has highlighted the intolerance of the Malaysian government on the issues of LGBT. The human rights activists have made a strong stand against the government’s action in going after Nur Sajat and criminalizing same-sex relations as well as gender nonconformity. They believed that everyone is equal and they have rights. However, even receiving strong objections, the government are still holding their stance on the issue when the Perlis Islamic authority decided to ban transgender folk from entering mosques for worship. The government believed that criminalising LGBT is a solution that curbs the issue and they are just upholding religious beliefs in the country, which is in line with Syariah. It might sound ridiculous to justify the government’s action and it is unreasonable to impose harsher punishment on them, but, from the opinions of natural law school, it is understandable and acceptable.

The natural law school or also known as a philosophical school, generally concerns itself with the relation of law to certain ideals which law is meant to achieve. The objective of this school is to investigate the purpose for which a particular law has been enacted. It is noteworthy that this school is not concerned with the historical or intellectual content of the enacted law. This essentially means it does not matter how the law is enacted, what matters is why the law is enacted in the first place. According to Cicero, natural law is universal where it applies to everyone in this world. For example, the offence of murder, no matter where the murder took place, is still wrong under natural law. Meanwhile, according to Hugo Gratius, one of the notable jurists of this school, natural law is immutable in the sense that it cannot be changed and will continue to exist if there is no God. This means that considering whether one thing is right or wrong is depending on the nature of the thing itself. On the other hand, according to John M Finnis, natural law consists of two sets of principles which is the existence of certain basic values and the requirement of practical reasonableness. This means that any law under this school must be logically possible to be done and is not immoral. It is also noteworthy that natural law is associated with morality and conscience. This is clearly because, under this school, law and religion must be seen as one since they are interrelated to each other. It can be deduced that for a law to be enacted, it must also be observed from the perspective of religion and they could not contravene each other.

This school has been criticised for its concept on any human law must be conforming to natural law, and if it is not, it will not be regarded as law. It is argued that people have different ideas about what is just, fair or moral. Thus, in determining something is law or not, it cannot only consider whether it is moral, fair or just. Despite the criticisms, it is undeniable that natural law school has contributed to the area of law specifically in interpreting the laws. This can be fortified with the case of Lim Ying v Hiok Kian Ming Eric [1992] 1 SLR184. In this case, the Singapore High Court has interpretated ‘monogamous marriage’ as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage. The word ‘man’ is interpretated in its ordinary meaning that is in contradistinction to woman. A person biologically a female with an artificial penis, after surgery, and psychologically a male must be regarded as “woman” under the law. Hence, in this case, the marriage between two women is declared as void. From this case, it is clear that the nature of a human is to get married with the opposite gender, not the same gender and going against this will cause harm in the marriage later. The application of natural law theory can also be illustrated in the case of Re B (A Minor) [2001] UKHL 70 where the parents did not agree for their daughter to be operated on so that she could live between 20-30 years while living as a handicapped person. The parents contended that natural law indicates that nature has its arrangements in terminating a life, thus, one should not intervene in the natural arrangement. Even the court ordered the operation to be carried out, but, if from the perspective of the naturalist, the parents’ contention was acceptable.

If we referred to the aforementioned opinions of naturalists, the position of the Malaysian government in enacting the law to curb the issue of LGBT is then apprehensible. As known by everyone, Malaysia is a country that professes Islam as the official religion despite the multiracial and multicultural. As such, there is no doubt that the government has to uphold the Islamic belief and this is proved when Sultan has the authority in regulating the religious affairs. When the religious authorities have enacted the law to prevent the continuance issue of LGBT, they are taking into account the teaching of Al-Quran. Al-Quran has prohibited LGBT as stated in Al-A’raf 80 as it is against the order of nature. When LGBT is against the Syariah, it is immoral and hence, the enactment of the law to prohibit immorality can be regarded as law under the naturalist view.

To conclude, the Malaysian government has only enacted a law to prohibit behaviour that is against the order of nature and it is agreed upon under the natural law school. However, the discrimination that took place in the LGBT community should also be emphasized. The basic rights such as rights to education, rights to employment, etc. should not be infringed.

The article is written by a law student who intends to see the issue in the perspective of naturalist.

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