LGBTQ rights: Litmus test for democratic change

Rueban Balasubramaniam, Malay Mail Online

In this brief note, I argue that the way in which the newly minted PH government responds to threats to the legal rights of fellow citizens who identify as LGBTQ is a litmus test for whether or not it can meaningfully bring about democratic change in the “new” Malaysia.

The essence of constitutional democracy is the idea that each citizen has an equal say in the collective decisions taken in the name of society. The primary role of the state is to formally protect the status of each citizen as politically equal.

This primary duty also implies that the state must insure the relative social value of the principle of equal citizenship. In practice, this means the state is under a duty to protect citizens from domination and discrimination at the hands of more powerful groups.

The first responsibility of government is always to protect the status of each citizen as politically equal.

It also follows that the state will be subject to legal and political controls designed to curb the dangers of domination and discrimination. The reasons for this are obvious: The state is the most powerful entity in society because it has a monopoly over the use of force.

As well, powerful groups in society will try to capture the state apparatus and to use that apparatus as an instrument of domination and discrimination over others.

Therefore, in a properly constituted constitutional democracy there will be robust legal and political limits on state power, limits designed to discipline political power in a way that serves the interests of citizens conceived as political equals.

In Malaysia, the ideal of constitutional democracy finds concrete expression in our “supreme” written Constitution. As well, (readers can look up my scholarship on the Malaysian Constitution for a developed argument in support of these claims), to the extent that the concept of a Malaysian social contract is an intelligible concept, the social contract also assumes a commitment to the ideal of constitutional democracy.

Hence, the Constitution contains a host of provisions: Protections of fundamental liberties (including human rights), the principle of equal protection under law, the principles of an elected democracy, the separation of powers, and federalism, all of which suggest an underlying commitment to the ideal of constitutional democracy.

The clear impression is that the Constitution sets out to create a blueprint for social cooperation and for the enterprise of governance defined by constitutional democracy. And it is therefore the government’s first duty to uphold this ideal.

How does the Constitution apply to the rights of those who identify as LGBTQ? On the soundest reading of the Constitution, the state is under a legal duty to protect these rights. And this duty means that the state must protect those who identify as LGBTQ from domination and discrimination by other groups, including the state itself.

Those who so identify have the legal right to publicly perform and exercise their identities as fully participating members of a democratic society. To my mind, there can be no ambiguity that this is the coherent legal position.

Some readers may object that things are not so straightforward. The Constitution makes certain allowances for the primacy of Islam as the official religion of the Federation. And, the Constitution creates a separate and independent system of Islamic courts to adjudicate disputes arising in Islamic law.

As well, the principle of federalism itself might seem to grant state legislatures the autonomy to enact and enforce the precepts of Islamic law, which may include legal injunctions against those who identify as LGBTQ. In short, the Constitution might seem to allow for the legal enforcement of Islamic values and principles, which may militate against the rights of those who identify as LGBTQ.

There are two answers to this objection. First, if we suppose that the Malaysian Constitution is a coherent document, then we should read the document in a way that makes clear that the interests of any single ethical community (religious or otherwise) cannot override the democratic principle of equal political citizenship.

To the extent that the Constitution might seem to make religious or other communitarian values legally relevant to law and policy, these values must always be chastened by the requirements of constitutional democracy. If these values lead to discrimination and domination against other citizens are not legally permitted.

To the extent that the Constitution grants states a degree of autonomy to enact religious law and to the extent that there are Islamic courts empowered to enforce such law, these institutions do not possess a legally unlimited authority.

They remain under the purview and supervision of civil and constitutional courts and the democratic legislature, whose first duty is to uphold the Constitution as expressive of constitutional democracy.

Second, and this is perhaps the more foundational answer: If we allow the claims of a single ethical community to prevail over the legally protected rights of individual citizens under the Constitution, then we are setting aside the ideal of constitutional democracy.

Instead, we open the door to the very dangerous idea that Malaysian society is bottomed in a purely political constitution where the primary role of the state is to enact an authentic social and political existence for a single and dominant ethical community.

To open the door to this idea — to defer to the sensitivities of a single community, even a sizable one, is to create the way for dictatorship and its associated pathologies.

This last point is the threshold issue that now confronts the newly minted PH government as it navigates the question of the status and content of the rights of those who identify as LGBTQ.

I understand that as the inheritors of a vexing political context, where politics has long been defined by the premise that the first role of government is to protect the identity and interests of a single ethical community, the PH government must treat a delicate path.

The old politics have created the expectation by members of that community that its sensitivities are of an overriding political importance. Hence, it is unsurprising that the new government is attempting to tread carefully.

Its position seems to be that the rights of those who identify, as LGBTQ must be “formally” recognised but not publicly glamourised or promoted. The government is seemingly trying to strike a balance between respect for fundamental liberties and human rights and the pull of group sensitivity.

In my view, this is not the correct path to take. In this moment of political transition, the PH government should display the courage of the professed convictions that brought it to electoral victory at GE 14 and openly assert and defend the fundamental truth that the requirements of constitutional democracy regulate legal, political, and social life.

Therefore, it should also clarify that political parties and social groups that advance a political or ethical programme intended to undermine the principle of equal citizenship risk violating the Constitution.

Indeed, where there is compelling evidence that the purpose behind such programes is in fact to undermine the formal and material value of the citizenship rights of a particular group, then the government should consider banning such parties or groups as unlawful associations.

As my suggestion implies, the Malaysian Constitution therefore properly read as a democratic and secular Constitution. It is democratic because it privileges the principle of equal citizenship and it is secular because a theological political programme that that is incompatible with respect for the Constitution, including its injunctions against discrimination and domination, cannot be a legally legitimate basis to political rule in Malaysia.

To emphasise, on the soundest interpretation of the Constitution, the clear conclusion is that the Constitution is a democratic and secular document. If the role of the PH government is necessarily defined by the duty to respect the Constitution, then it should affirm this position.

The last and perhaps broader point I wish to make is that all citizens must confront a foundational decision about whether or not to embrace constitutional democracy or to return to the old politics of dictatorship.

Under the old politics, race and religion were politicised so that a small group of elites claiming to speak in the name of a specific ethical community could garner enough populist support to plunder state resources.

Citizens should wake up to the fact that the old regime merely exploited ethnic, religious, and cultural allegiances to its own benefit. This exploitation was possible because citizens allow their so-called “sensitivities” to be politically mobilised.

In the “new” Malaysia, we should gain the clarity to see that a deeper fidelity to constitutional democracy will ensure a social and political existence where government is required to treat each one of us as equals.

As part of that requirement, we should also view those who identify as LGBTQ as our equals — as citizens who share our social space and who have the right to publicly perform their identities — as our partners in the enterprise of governance.

For my part, I do not believe that the average Malaysian citizen lacks the clarity of mind to apprehend this point. As the results of GE 14 show, people share a concern to rehabilitate the ideal of constitutional democracy.

They might begin that rehabilitation by exercising serious social pressure against social groups and political parties that aspire to dominate and discriminate.

And the new PH government should take clear steps to protect the rights of those who identify as LGBTQ. Even those who do identify are a small group, the way the government treats their rights will be emblematic of its good faith and will to engage in the project of democratic change.

* Rueban Balasubramaniam is a Malaysian and Professor of Law at Carleton University, Canada. Currently he is in the “new” Malaysia working on a book, among other things.