Earlier this month, Malaysian student Hazim Ismail was allowed to remain in Canada, as a 'protected person' by refugee status.
The openly gay and atheist University of Winnipeg student reportedly claimed he fears for his life if he was to return to his native Malaysia.
In order to determine whether or not a person is a refugee, it is therefore important to look at the term ‘refugee’ from the purview of international law.
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Refugee
A refugee, according to the 1951 Geneva Convention on Refugees is ‘a person who is outside their country of citizenship because they have well-founded grounds for fear of persecution based on their race, religion, nationality, membership of a particular social group or political opinion, and is unable to obtain sanctuary from their home country or, owing to such fear, is unwilling to avail themselves of the protection of that country’.
Therefore, the word ‘refugee’ more often than not, sparks mental images of those people suffering in war-torn countries such as Syria, Iraq and Afghanistan.
The Rohingyas, for example, are regarded as illegal immigrants in Myanmar and have never been given Myanmar citizenship. They often face persecution and have been quite recently found drifting in boats off the Thai, Malaysian and Indonesian coasts.
The Syrians face continuous oppression from the Assad regime and millions of refugees have attempted to make their way into Europe seeking protection and a better life. Nevertheless, not all were successful in that attempt.
In 1994, the Tutsis of Rwanda faced persecution from the Hutu-led government where almost 1 million Tutsis were tortured and murdered by virtue of their race. This caused an influx of Tutsi refugees into neighbouring countries such as Burundi, Uganda, Kenya and Tanzania.
Similarly, the Sierra Leone Civil War that ended in 2002 has displaced more than 2.5 million Sierra Leoneans internally and externally.
These incidents have two similarities – ‘persecution’ and ‘inability to obtain sanctuary from their own country’.
Lessons from the plight of genuine refugees
Modern Malaysia
Malaysia has progressed since independence and has now become one of the most peaceful countries in this region.
In 2015, the Global Peace Index (GPI) ranked Malaysia as the 5th most peaceful nation in Asia-Pacific and at 28th at the global level.
The high level of peace and tolerance in Malaysia may have contributed in Kuala Lumpur, the capital of Malaysia, to be listed as one of the most visited cities on the planet, as reported by Forbes in 2015.
The Federal Constitution of Malaysia upholds the fundamental liberties of all Malaysians against any forms of persecution.
Article 8 (2) of the Federal Constitution mentions clearly that there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law.
Are homosexuals and apostates discriminated against by the Malaysian government?
If so, what are the laws that provide as such?
Malaysian Law
As a pre-dominantly Muslim nation, Malaysia in general, has never discriminated or persecuted any citizens who are homosexuals and/or atheists.
Nevertheless, the Malaysian Penal Code stipulates that ‘carnal intercourse’ against the act of nature is an offence under Malaysian law.
Section 377A of the Penal Code reads ‘Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.’
The offender is punishable with imprisonment not exceeding twenty years and whipping.
The Malaysian Penal Code applies to both Muslims and non-Muslims.
Muslims are also bound by the provisions of the Syariah Criminal Offences Act enacted by all States within Malaysia.
Although each states possess their own Syariah Code, the law on this matter is somewhat similar.
For instance, the Syariah Criminal Offences Act (Federal Territories) 1997 stipulates that any man who commits anal intercourse with another man shall be guilty of sodomy (liwat) and thereby punishable with imprisonment, fine and/or flogging.
The Syariah codes in most States in Malaysia do not clearly specify that the act of apostasy or renouncing Islam as an offence.
However, the law does provide for such a person to be sent to Islamic correction institutions for counseling sessions, as mentioned in Section 66(1) of Melaka Syariah Criminal Enactment 1991.
Both the Penal Code and the Syariah Criminal Offences Act (of all states in Malaysia) do not mention that being a homosexual per se is an offence.
The offence is only committed when a person is engaged in sodomy.
In addition, Syariah law in Malaysia does not classify apostasy as a criminal offence.
Therefore, in what way could one contend that homosexuals and apostates are discriminated against in Malaysia?
Conclusion
Hazim Ismail has been allowed to stay in Canada as a refugee as he fears for his life if he should ever return to Malaysia.
The decision made by the Canadian government came as a surprise, as if Malaysia is a dangerous and an inhospitable country particularly for these groups of people.
It may be true that the practice of homosexuality and apostasy are frowned upon by majority Malaysians who are Muslims.
It is however not entirely correct to contend that Malaysia, in general discriminates and persecutes these groups of people.
Malaysia is a modern democratic country and there has never been any large-scale persecution against both homosexuals and apostates in this country.
Malaysia has a working government that is capable of providing sanctuary for all of its citizens, without favouring one over another.
Therefore, one may contend that Hazim Ismail may not fit the definition of a ‘refugee’ provided in the 1951 Refugee Convention.
However, the decision made by the Canadian government on this is final and should be respected.
If Canada, a member-State of the 1951 Refugee Convention may take in Hazim Ismail as a refugee, it is hoped that they would also consider taking in other desperate refugees in need of real humanitarian assistance, particularly from war-torn countries.
Author, Mohd Hazmi Mohd Rusli (Ph. D), is a senior lecturer at Universiti Sains Islam Malaysia, and a visiting professor at the Far Eastern Federal University, Vladivostok, Russia.
Views expressed are personally those of the author and do not necessarily reflect those of Astro AWANI.
