PRESS STATEMENT: Same-Sex Marriage and LGBT: From the Legal, Medical and Maqasid Syariah Perspectives

18 January 2018

On December 7, 2017, Australia became the 24th country to recognise same-sex marriages. Only 4 Members of Parliament (MPs) voted against the motion in the Australian Parliament to legalise same-sex marriages. The Australian bill only needed to amend the phrase from “the union of a man and a woman” to “union of two people”.

Same-sex marriages was first recognised in occidental countries almost 20 years ago. Netherlands was the first country to do so in 2000 when its parliament voted 3:1 in support of legalising gay marriages. The law that allows gay couples the rights to marry, divorce and adopt a child was made only by amending a phrase in the legislation to include: “Marriage can be contracted by two persons of different or same sex”.

Iceland allowed gay marriages in 2010 and its Prime Minister, Johanna Sigurdardottir, married her partner, Jonina Leosdottir, becoming among the first lesbian couples to do so under the amended Icelandic legislation. In Denmark, with the passing of the law to allow for same-sex marriages, the Evangelical Lutheran church, which is the the official church of the country, is directed to recognise gay marriages to take place in churches, even though the priests are not obligated to carry out the marriage ceremonies.

The principle of secularisation truly dominates the decisions of these western countries when church protests were not taken into account in their respective governmental decisions. The protests from the Catholic Church against Maltese Parliament were ignored, as were the protests from the Scottish Church’s and Roman Catholic Church’s, the two largest churches in Scotland, against the decision of Scottish parliament to permit same-sex marriages. However, the Church of England still maintains the definition of marriage as a union of between a man and woman although the prime minister of England David Cameron, recognised same-sex marriage in 2014. Even so, the mounting pressure to legitimise gay marriages has changed the principles of some churches, such as the Lutheran church in Sweden, where 3/4 of its followers have accepted gay couples since January 2007.

Malaysia faces LGBT agenda in its mainstream media

The agenda to celebrate the lesbian, gay, bisexual and transgender (LGBT) lifestyles begun its infiltration into the mainstream media in 2017, when National Geographic magazine promoted the lifestyles as the latest trend and stated that there are more than 70 gender-choices that can be ‘selected’ by the global community. Facebook users have over 60 ‘gender’ options since 2014. Shell, through their Facebook international-page, popularised ‘International Coming Out Day’, which is dedicated to celebrate the LGBT community on 11th October last year.

The narratives to accept LGBT are also enforced as early as childhood years. The Disney Channel had aired and promoted a same-sex kissing scene in Star vs The Forces of Evil. Mega production company, Walt Disney produced Beauty and The Beast film that imports elements of homosexuality. This was confirmed by its director, Bill Condon in an interview with a British gay lifestyle magazine, Attitude.

This is a concerted effort by the LGBT supporters to force their agendas to the young minds with a lifestyle that is divorced from the values of Islam. We have reached a point, where our children’s favorite shows are forced to pervade the LGBT agenda deep into their conscience.

In Malaysia, we have witnessed numerous times how some MPs are trying to advocate this pervasive narrative to the community. On 21st November, Charles Santiago, Klang MP, in conjunction with the Transgender Day on 20th November, had called for the Islamic bodies such as Jabatan Kemajuan Islam Malaysia (JAKIM) and Jabatan Agama Islam Selangor (JAIS) to cease enforcement actions on this pervasive culture and urged the government to abolish all laws and regulations that allegedly discriminate against the transgender, via on his Facebook page. Prior to that, Tanjung Bungah Assemblyman, Teh Yee Cheu, chaired the Penang Transgender Committee on 17th May 2016.

LGBT rights vs Rights to Belief

Adherence to a religious belief is considered by the LGBT supporters as discriminatory, and is no longer considered as a basic human right to belief. This is evidenced in the case of a Christian baker, Jack Phillips, who refused to make a homosexual couples’ wedding cake in Colorado, USA, on the ground that the cake decorations and messages would violate his religious principles. The said homosexual couple, Charlie Craig and David Mullins had lodged a complaint against the baker and he was found guilty by the Colorado Human Rights Commission for violating the Colorado Anti-Discrimination Act. This decision is also upheld by the state courts.

In the second case, an Oregon court had found the Kleins, who own a cake shop, to be discriminatory and fined the couples for USD 135,000 for refusing to prepare a cake for a lesbian wedding. The justification given by the Kleins is the same as the one given by Jack Phillips; that preparing such wedding cake would violate the religious principles they believe in.

These cases clearly illustrated how the preservation of a minority’s human rights could affect the rights of the majority.

The Federal Constitution preserves the Maqasid Syariah

The Federal Constitution states that Islam is the religion of the Federation under Article 3(1). The special position of Islam as a basic structure of the Constitution is based on the fundamental principle of preserving and regulating the actions of Muslims in matters involving personal laws, contractual, social, or criminal matters.

Whereas, Article 8 of the Federal Constitution elucidates on equality for all in the eyes of the law and dictates that there can be no discrimination based on a person’s religion, race, descent, place of birth or gender. Our Constitution states that “gender” refers to the biological sex that differentiates between men and women alone. Nevertheless, Article 8(1) does not confer absolute right because the Constitution and the law still allow for some forms of reasonable exceptions, as exemplified by the court presiding in the case Datuk Haji Harun Idris v Public Prosecutor [1977] 2 MLJ 155.

Furthermore, in the Law Reform (Marriage and Divorce) Act 1976, particularly under Section 69(d), it provides that “A marriage which takes place after the appointed date (i.e. 1st March 1982) shall be void if the parties are not respectively male and female”.

In Islam, family structure is regarded as important and is enshrined in the Maqasid Syariah (universal aim of Syariah) to maintain nasab or ‘hifz nasb’. Marriage is ultimately to produce a descendant through clear lineage; not through surrogacy as is usually practised by a gay couple. In another principle of Maqasid Syariah, i.e. preservation of life or ‘hifz nafs’, it is clear that the ban on Muslims from engaging with the LGBT lifestyles is based on a solid foundation.

In early December 2017, we were shocked by the statistics from the HIV, Disease Control Division, Ministry of Health, which show that new HIV cases were higher among homosexuals (gay, bisexual and transgender). And out of 1553 new cases among those who practise homosexuality, 40% are among 19 to 29 year-olds, mostly students while 31% are professionals between the age of 30-39. Our youths who are deemed as the nation’s hopes, are those who are most affected.

Islamic principle, in preventing pervasive sexual practices, are in actuality preserving the rights of both the minority and majority groups.

These are the principles that deserve the attention of all members of the society, especially our parliamentarians in drafting a policy to reject the campaign or the philosophy based on occidental values of human rights, which do not stand on the religious eminence valued by Malaysia and are indeed unacceptable to Malaysians.

JOINT STATEMENT BY:

Azril Mohd Amin
Chairperson
Malaysian Alliance of Civil Society Organisations in the Universal Periodic Review (UPR) Process (MACSA)

Prof Madya Dr. Rafidah Hanim Mokhtar
Co-Chairperson
MACSA

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