KUALA LUMPUR, Sept 24 — Denying a person entry into the country based on sexual orientation could be unconstitutional even if the law gives the Immigration Department discretionary power to do so, criminal lawyers have argued.
They noted that homosexuality was not expressly illegal in Malaysia and there were no laws that prohibit gay people from congregating, making the department’s legal justification for the ban weak.
“A ban on someone purely based on one’s sexual orientation may be argued to be unconstitutional. As everyone is equal before the law and the entitled to the equal protection under the law,” criminal lawyer Amer Hamzah Arshad told Malay Mail Online.
“There’s no specific law preventing people, regardless of their sexual orientation, from meeting up or having social function.
“Having said that, if in the social function, there are people who commit acts which are against the existing laws, then the appropriate action can be taken,” he added.
Malaysia criminalises anal and oral sex as carnal intercourse against the order of nature, but there are no laws that specifically prohibit or punish same-sex attraction.
However, homosexuality along with other non-heterosexual orientations are taboo in Muslim-majority Malaysia.
Muslim uproar over a “gay party” planned for September 30th in a club at the heart of the capital city prompted the Immigration Department to announce on Thursday a ban on the organisers and anyone planning to participate in the party.
Immigration director-general Datuk Seri Mustafar Ali said in a press statement that the move was to preserve public order, declaring gay parties a threat to peace and security.
Criminal lawyer Joshua Tay said the Immigration Act 1959/63 gave Mustafar wide powers to decide arbitrarily if a person constitutes a security threat as the law did not compel him to produce proof, even if he is legally required to explain a ban.
“Being gay in Malaysia is not unlawful… so, if they have problem in determining whether someone is gay or not, then the ban will ultimately rest on the prejudices of the person exercising that power,” Tay said.
Mustafar did not explain if his department has a system to screen for homosexuals, but said it would collaborate with other agencies to “identify” those who were planning to attend the party.
Critics and rights groups have accused the department of abusing its power to prevent anti-establishment figures from traveling.
Some of the travel bans are currently being challenged in court.