The High Court at Kuala Lumpur today delivered judgment on this important case.
The Honourable Datuk McJudge: The Plaintiffs are a collective of gay activists. The Defendant is a department within the Government of Malaysia in charge of all things related to Merdeka Day (contests, parades, flags etc).
On 22nd April 2010, the Defendant declared that the 31st of August, which is Merdeka Day, would no longer be a public holiday. In an hour long press conference, Merdeka Minister Dato’ Homofo Bia Ken Kill said that the holiday was now only for heterosexuals.
In response, the Plaintiffs brought an action for damages. They alleged that the decision was so unfair and discriminatory that it had led to homosexuals all over Malaysia getting depressed and incurring huge expenses on alcohol and drug consumption.
Learned counsel for the Defendant submitted that such a decision was made after careful deliberation and study into the meaning of patriotism. He argued that the Ministry had decided that the definition of patriotism was “unqualified pride and love for one’s country”, therefore it was only fair that only truly patriotic citizens got the day off.
As a country that still retains a penal code from the colonial era criminalising gay sex, LGBT rights are not recognised in Malaysia. A subsection of the criminal code also provides additional punishment for persons convicted of, “gross indecency with another male person”. In addition to the secular law, Muslim citizens may also be charged in special Islamic courts. Punishments range from fines, long prison sentences to even corporal punishment. With this sort of discrimination, he submitted, it would not make sense for any gay person residing in Malaysia to be patriotic.
Submitting further on reasonableness, he argued that the test was not whether it was reasonable for the gay community to be deprived of a national holiday, but whether it was reasonable for any person to be gay in Malaysia in the first place, given the strict penalties and hassle involved. He cited examples such as the prosecution of Anwar Ibrahim, transsexuals being arrested for public indecency, and the People’s Anti-Homosexual Voluntary Movement.
At this point, I found that there was merit in this contention, and also that the air-conditioning was not working.
Anyway, counsel for the Plaintiffs was appalled by this and quoted Greek philosopher Socrates who said, “patriotism does not require one to agree with everything that his country does and would actually promote analytical questioning in a quest to make the country the best it possibly can be.”
“My Lord, who better to analytically question than those anally affected?” he said.
At this, counsel for the Defendant promptly stood up and said “My Lord, by his choice of words, my learned friend is making an ass of the law”
Ignoring him, the Plaintiffs’ counsel submitted that the very fact this action was being brought by gay activists proved that the gay community was greatly concerned with the progress and development of the nation, as such they could not be accused of being unpatriotic.
He further submitted that a definition for patriotism could not be determined by simple reference to a dictionary when such a decision involved depriving citizens of a holiday they had gotten used to over the years. He said, citing 981 case laws, such a sudden change could potentially lead to public disorder, which is something we obviously cannot afford to have in this country.
Instead, he argued, the Ministry should have looked further into the origins of the holiday. He submitted that Merdeka Day was a celebration of independence, stemming from pride and a refusal to take orders from a queen. These, he submitted, were values espoused by members of the gay community across the board, therefore they could not possibly be categorised as being unpatriotic.
Counsel concluded that the Plaintiffs should be allowed to succeed in this action because ultimately the Defendant’s decision would be pointless as most people would rather have the day off than admit to being gay. As such, if the Defendant won, it would be a tiny step for the government but a giant leap back into the closet for homosexuals.
I had intended to go on holiday, but as we are fast approaching Merdeka Day, I felt it would not be wise to leave this matter unclear. Accordingly, I find in favour of the Defendants. The Plaintiffs are advised not to bother appealing, to pay all costs, and to show up at work on the 31st.