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Rethinking Malaysia’s sodomy laws

THEY’RE colonial relics, they’re rarely invoked, and other Asian countries have effectively taken them off the books. But because Malaysia’s sodomy laws are tangled up in politics and religion, they’re probably not going anywhere for a while.

In 2007, Singapore modified their sodomy laws, expressed in Section 377a of the island-state’s Penal Code, to exclude heterosexuals who perform consensual oral and anal sex. On 2 July 2009, India repealed its own Section 377. In contrast, Malaysia’s most recent addition to the history of sodomy laws is its second charge against parliamentary Opposition Leader Datuk Seri Anwar Ibrahim.

When asked what it would take to get Malaysia to follow suit and repeal its sodomy laws, gender and sexuality rights activist Alina Rastam laughs. “A miracle?” she asks. Nevertheless, could the time finally be right for Malaysians to rethink the relevance and righteousness of sodomy laws?


Simranjit (Courtesy of
Simranjit Kaur Gill)
Simranjit Kaur Gill of the Women’s Candidacy Initiative says the group has researched charges brought under Section 377 of Malaysia’s Penal Code. The act criminalises “carnal intercourse against the order of nature”, or oral and anal sex. Their research found seven charges from 1938 to the present. Four of those seven charges are connected to Anwar.

So why does Malaysia need a miracle to repeal an act that is mainly used to persecute a political opponent of the government?

Zulkifli Noordin, Parti Keadilan Rakyat (PKR)’s Kulim-Bandar Baru Member of Parliament, says Section 377 shouldn’t be judged by the number of charges laid. The act should remain in place because it is consistent with the Islamic values shared by the majority of Malaysians, he says.

“It has been in human civilisation to treat sodomy as an offence [for thousands of years]. So there must be some reason why,” he tells The Nut Graph.


                                             Zulkifli
“It’s stated there in the Bible, it’s stated there in the Old Testament, it’s stated there in the Al Quran. So I think, to be safe, we should just follow God’s law.”

Ironically, the Barisan Nasional government also has little motivation to repeal a tool that has proved useful against its most powerful opponent.

Catch-22

Latheefa Koya, who is PKR’s information chief and a member of Anwar’s legal defence team, says the charges were politically motivated. It’s hard to see its disproportional use against Anwar in any other way, she says.

A sodomy charge hits at the root of Anwar’s credibility, Latheefa says. “He had an image of someone of high moral standing, who’s Islamic in his background. So the best way to destroy that is trump up a charge with sexual connotation in it. And if you can’t get that person to be seen with women, then you might as well deal with sodomy.”

When contacted by The Nut Graph, the Attorney-General’s Chambers declines to offer an explanation. Its public relations officer says in an e-mail that the office could not reply to inquiries connected to an ongoing case.

Latheefa says she personally thinks Section 377 should be repealed because there’s no point policing the private actions of consenting adults. But PKR would not be pushing for the law to be taken off the books any time soon, she adds.


Latheefa
“It would be wrongly seen that we are only trying to get rid of the law because Anwar is being charged. So in that context, it is complicated,” she says.

It’s also clear that there are major differences in opinion even among PKR members about Section 377, as seen in the differences between Latheefa’s and Zulkifli’s views.

Anwar’s trial has created a classic catch-22. The government is politically motivated to keep the law the way it is. And the opposition is afraid that challenging the very law that is making their leader look un-Islamic would be seen as, well, un-Islamic.

More legal complexities

Section 377 isn’t the only act criminalising homosexuality and sodomy in Malaysia. There are also many parallel offences under state-level syariah laws. These range from improper conduct in public spaces to sexual relations between persons of the same gender.

When deciding whether to prosecute Anwar under civil or syariah law in 1999, the High Court referred to a decision from a case in 1884 called Brett MR in R v Tonbridge Overseers. The judge in this case stated that where an offender commits an offence triable by either the civil court or a syariah court, he or she may be prosecuted in either one. What is less clear is who decides which court will try the case, and how that decision is made.

“There’s no official policy. It’s decided on a case-by-case basis,” says Edmund Bon, chairperson of the bar council constitutional law committee and another member of Anwar’s legal team.


Bon (Courtesy of Edmund Bon)
But The Nut Graph has to go through four different answers from four different lawyers before Bon’s final explanation that there is no formal procedure in place. The differences between these answers cannot be explained by lack of experience or expertise.There’s really only one conclusion to be drawn: the system is complicated, often arbitrary, and full of ambiguous legal grey areas.

Potential for crackdowns

The combination of Section 377, the syariah laws, and the Internal Security Act (ISA) gives the police and Islamic departments a powerful arsenal to crack down on “unnatural sex”, and any attempt to challenge the definition of “unnatural sex”, if they want to. The broad scope of these laws means they can be applied to heterosexuals and non-heterosexuals, Muslim and non-Muslim alike.

But Latheefa says that’s not a scenario Malaysians need to worry about. Islamic law requires four witnesses for offences related to sex and sexuality, because charges are intended to be infrequent. Charges under Section 377 are meant to be rare for the same reason, she says.

“The whole philosophy behind such offences is to say that we look at it very seriously, but in order to establish it, you would probably have to [commit] it in public,” she says.

Zulkifli makes a very similar point: “I don’t think the government is interested to barge into all these gay clubs and whatnot, unless somebody lodges a report,” he says. “But if it’s rampant, if people start having [homosexual] sex at every corner, then maybe we will take action.”

That may be how Zulkifli defines “rampant,” but keeping the law the way it is means the police and government have the power to arbitrarily decide.


Anwar
Alina says giving them that power without checks and balances is dangerous. “Anything that is discriminatory is disturbing. Having these laws remain is an issue, even if they’re hard to enforce,” she says.

Ironically, Alina says Anwar’s sodomy trials have helped sexuality rights activism to develop in Malaysia. The 1998 trial pushed the issue into the public eye. Today, many non-governmental organisations are taking stands on sexuality rights, and are even starting to conduct training workshops on the issue.

Nevertheless, Alina says the movement is still in its infancy 10 years later. “There have been advances since Anwar’s trial in 1998, but they’re really just a drop in the ocean.”

That said, many people thought it would take a miracle to change India’s sodomy laws, too. Look what eventually happened.

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24 Responses to “Rethinking Malaysia’s sodomy laws”

  1. Sam says:

    I am surprised The Nut Graph had to seek out the opinion of [...] Zulkifli Nordin.

    Sodomy is a sin, he says. So is corruption, lies, murder, racism, extra-marital sex, etc.

    Why does [he] focus only on sexual sins as though that’s what matters most to God? A sin is a sin.

  2. armstrong says:

    Morality of sodomy is based on one’s belief. I don’t believe in anal sex (either same sex or opposite sex) but I don’t forbid people from doing it. In malaysia, we should repeal that law as it is being used for political persecution more than anything else.

  3. Alan S TAN says:

    I am aware that sodomy is written about in the three holy books. Are we forgetting that there are many who do not ascribe to these values or these teachings? Why are we regulating as if this was a homogenous Muslim society? Given Zulkifli’s myopic statement, am I to assume that they are going to start legislating Christian values?

    This is strictly the purview of the syariah. Let it stay there. If not, let me take on another three wives. There is no reason [...] why a non-Muslim is not CAPABLE of doing the same.

    “A government who steals from Peter to pay Paul will always have the support of Paul” – George Bernard Shaw

  4. Nirman says:

    Nothing is wrong with the law. It is the culprit using the law to give others a bad name — that’s really the main problem here.

  5. siew eng says:

    I think it’s revealing that Singapore allows it only for heterosexuals.

    What does that tell you?

  6. D. Evil says:

    Unnatural sex offence in Malaysian law is carried forward from English law. The basis of this statute is Christianity. If Malaysia is an Islamic country, why enforce a Christian law?

  7. M.K. says:

    Section 377 should be repealed simply because it is being misused by the ruling regime for their own benefit.

    Moreover, what happens behind the closed doors of sleeping couples, whether married or not, is something very private and none of our business, or anybody’s business, so long as they do not cause any problem to those outside.

  8. fslam says:

    An obsolete law which does not serve its intended function [...] when [it was] formulated. Hence an obsolete law needs review to reflect the changes in social and ethical values.

    However, a law is considered “bad” when humans use it to persecute their enemies or interpret it according to their whims and fancies for their own benefit.

    Keeping an outdated law just for the sake of using it against the opposition is utterly unethical and destroys the moral and just fabric Malaysian society was built on.

  9. Nicholas Aw says:

    Hello, wake up everybody, we are living in the 21st century. If we have laws that are archaic, then Parliament should act on repealing these laws.

    Can anyone honestly confess that he/she does not indulge in oral sex which is considered “unnatural”? If someone wants to be a homosexual, what is the big deal if he does it in the confines of a private building? Sex acts which include cunnilingus, tribadism and what-not are part and parcel of [...] techniques to improve couples’ sex life. They have been in existence since the days of the Kama Sutra.

    It is ironic when such [matters of] privacy [are] given priority over corruption and abuse of power. Sex, like religion, is a personal thing so let us get our priorities right.

  10. k c lpw says:

    Whatever it is, this Sodomy 2 trial stinks to high heaven. It can only happen in 1Malaysia.

  11. Lee Yin Harn says:

    The principle is so simple that I constantly wonder why people and governments have trouble grasping it: What consenting adults choose to do with each other in private is none of anybody else’s business.

    Just think about it. Would YOU want someone to come along and tell you how to conduct your sex life?

  12. Anonymous Coward says:

    When I am in bed trying to get some woohoo, I care VERY little for anyone else outside of that room. I also do not care about anyone else getting woohoos, regardless of how they like it.

    I should think that the government would have bigger fishes to fry than the personal lives of its people. Fix the economy, press freedoms, personal liberty and then we’ll talk.

    The government has absolutely no business getting in the way of my woohoo sessions. Everyone should be outraged that they get the power to even CONSIDER to invade their bedrooms while they’re woohoo-ing.

  13. Eskay says:

    Surprised The Nut Graph has to concur with Zulkifli’s view on sodomy as such laws were written in religious books a thousand plus years ago.

    We are no more living in the dinosaur age. Maybe Zulkifli still is.

    But we need to move with the times. Archaic and obsolete laws need to be repealed. Else we should continue to live in caves and tree-tops, ride horses/camels for transport and visit witch-doctors and pawangs when sick.

  14. bugger says:

    Etymologically, a “Bugger” was a “Bulgre” (French Bougre). Originally, it was derived from the French word “Bougge­rie” (“of Bulgaria”), meaning the medieval Bulgarian clerical sect of the Bogomils, which facing severe persecution in Bulgaria spread into Western Europe and was branded by the established Church as particularly devoted to the practice of sodomy.

  15. Chandran Sukumaran says:

    It would appear, in Malaysia, corruption and murder is a lesser offence than sodomy. The lay[person]‘s thought (Muslim and non-Muslim) is that, by hook or by crook, Umno must put Anwar behind bars for a long period of time to pursue their unabated corruption. They have in their arsenal, the police, MACC and the AG. They claim that the judiciary is independent!

  16. Azizi Khan says:

    Zulkifli Noordin is the perfect candidate to monitor Section 377. He will organise and unleash snoop squads to snoop every house in Malaysia. Coming soon to a house near you.

    I am sure as well that he will recommend “four witnesses” to ensure that the “technique” you use in the bedroom does not contravene with Section 377.

    AK

  17. Jac says:

    An act is a crime when it results in harm. When it is consensual, the only “harm” that can be inferred is a kind of “moral” harm that impacts on the larger society.

    So what is the greater moral harm to society? The fact that it polices and punishes the private behaviour of individuals to the most intrusive detail, or the fact that diversity is allowed?

    Get rid of 377 and more.

  18. The Lord Panda says:

    What politicians, or anyone else, do to their partners’ orifices (orifii?) in the bedroom is their business.

    I don’t care as long as they work for the rakyat. Don’t waste money with all these court cases.

  19. Grace Poore says:

    With regard to Singapore, the 377 law was repealed for heterosexuals but 377A was retained for same sex relations. A vocal Christian minority called for 377A to extend to lesbianism but it wasn’t. IGLHRC followed the 2007 debates on whether to repeal 377. Here’s the link:

    http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/483.html

  20. Hi, I had written this earlier [in an e-mail discussion group in which this article was posted] and this led to some confusion:

    “Hi, the writer writes: ‘In 2007, Singapore modified their sodomy laws, expressed in Section 377a of the island-state’s Penal Code, to exclude heterosexuals who perform consensual oral and anal sex.’

    “As far as I know, this is not correct information. The Singapore Parliament debated on the issue of 377A, but in the end refused to change the law. Apparently they are waiting for society to change before they get around to changing the law….”

    Please let me clarify. I know for a fact that the older Section 377 of the SPC was repealed and replaced by the new Section 377 (Sex with a Corpse) and 377A (Sex between men), amongst others. The writer mentioned that 377A was changed, but in reality it was introduced and with the intention of criminalising male-male sex. Specifically 377A was not changed, 377 was. Heterosexual sodomy and lesbian same-sex sex was excluded by changing 377 (Not 377A).

    I quote below the relevant section:

    Sexual penetration of a corpse
    377. —(1) Any man who penetrates, with his penis, the vagina, anus or mouth, as the case may be, of a human corpse, shall be guilty of an offence.

    (2) A man who is guilty of an offence under subsection (1) shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with both.

    (3) Any person (A) who causes any man (B) to penetrate with B’s penis, the vagina, anus or mouth, as the case may be, of a human corpse, shall be guilty of an offence if B did not consent to the penetration.

    (4) A person who is guilty of an offence under subsection (3) shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

    Outrages on decency.

    377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

    Sexual penetration with living animal

    377B. —(1) Any person (A) who -

    (a) penetrates, with A’s penis, the vagina, anus or any orifice of an animal; or

    (b) causes or permits A’s vagina, anus or mouth, as the case may be, to be penetrated by the penis of an animal,

    shall be guilty of an offence.

    (2) A person who is guilty of an offence under subsection (1) shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with both.

    (3) Any person (A) who —

    (a) causes any man (B) to penetrate, with B’s penis, the vagina, anus or any orifice of an animal; or

    (b) causes the vagina, anus or mouth, as the case may be, of another person (B) to be penetrated with the penis of an animal,

    shall be guilty of an offence if B did not consent to the penetration.

    (4) A person who is guilty of an offence under subsection (3) shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

    Interpretation of sections 375 to 377B (sexual offences)

    377C. In sections 375 to 377B ––

    (a) penetration is a continuing act from entry to withdrawal;

    (b) references to a part of the body include references to a part which is surgically constructed (in particular, through a sex reassignment procedure);

    (c) for the purposes of identifying the sex of a person —

    (i) the sex of a person as stated in that person’s identity card issued under the National Registration Act (Cap. 201) at the time the sexual activity took place shall be prima facie evidence of the sex of that person; and

    (ii) a person who has undergone a sex reassignment procedure shall be identified as being of the sex to which that person has been reassigned;

    (d) penetration, touching or other activity is “sexual” if —

    (i) because of its nature it is sexual, whatever its circumstances or any person’s purpose in relation to it may be; or

    (ii) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual;

    (e) “vagina” includes vulva.

    Mistake as to age

    377D. —(1) Subject to subsections (2) and (3) and notwithstanding anything in section 79, a reasonable mistake as to the age of a person shall not be a defence to any charge of an offence under section 376A (2), 376B or 376C.

    (2) In the case of a person who at the time of the alleged offence was under 21 years of age, the presence of a reasonable mistaken belief that the minor, who is of the opposite sex, was of or above —

    (a) the age of 16 years, shall be a valid defence to a charge of an offence under section 376A (2); or

    (b) the age of 18 years, shall be a valid defence to a charge of an offence under section 376B or 376C.

    (3) For the purposes of subsection (2), the defence under that subsection shall no longer be available if at the time of the offence, the person charged with that offence has previously been charged in court for an offence under section 376A, 376B, 376C or 376E, or section 7 of the Children and Young Persons Act (Cap. 38) or section 140 (1) (i) of the Women’s Charter (Cap. 353).

    Information source: http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_getdata.pl?actno=1872-REVED-224&doctitle=PENAL%20CODE&date=late&segid=888373002-001939

  21. Awan Gebu says:

    Sometimes I wish to God the British had never come here.

  22. John Lawrence says:

    Why debate nonsense? Scrap laws forbidding sexual acts between consenting adults.

  23. Gopal Raj Kumar says:

    The proposition that somehow the laws against sodomy remain on the statute books has something to do with Anwar’s alleged preference for anal intercourse is preposterous. It is a bit like Tommy Thomas suggesting major crimes are brought to book only where the alleged offender is a public figure or politician. (Recent Nut Graph comment by Ambiga Sreenivasan)

    Nothing could be further from the truth in either explanation. Sodomy offends not only Islam (of which the majority of Malaysians are adherents to) but also Catholicism and public and private health for obvious reasons.

    Nut Graph like many other pro-opposition publications suffers from the blindness of a rage that arises from contrarian views such as these expressed that they (the opposition) could sometimes possibly be wrong in their views.

    Singapore may alter the rules like they have done with long hair. That does not necessarily make it either right, morally correct or something worthy of Malaysia’s emulation. Remember Singapore also has in place policies (unwritten) whereby the right to its minority (by convention and public statements of its leaders) to become prime minister is effectively denied. Clearly that example is not one the Malaysian opposition would be ready to follow.

    As for the other Asian countries where human life is a dispensable commodity, no one else ought to be rushing to emulate their laws on the subject either. Thailand, Laos, Philippines, India, Sri Lanka, Myanmar, China where child sex is a huge money earner and these countries are a hangout for gays and pedophiles from all over the world.

    Singapore plays host to many international events [involving attendance from places] such as Australia, Britain and the US.

    This is a profession which attracts large numbers of gay men. It is a fact acknowledged by the airlines from these countries who in the same breath will let you know they do not discriminate on the basis of gender or sexual orientation.

    The effect of decriminalising anal intercourse or oral sex would in actual fact have a detrimental impact on Singapore’s tourism industry and the airline industry which it cannot afford to offend.

    It is for practical reasons and nothing else that they have altered their laws on the subject. Moreover remember this is also the home of Bugis Street, a major landmark and industry of Singapore’s colonial past.

    Malaysia has every right to outlaw something even Tasmania in Australia regards as a criminal offence.

    There is a need to be circumspect when we write articles trying to justify something that is wrong from not only a moral stand point but also from a legal perspective simply because “gender bending” is now popular and those effeminate men in our midst want the right to test public tolerance for their reversion of that act of procreation.

    Simply because corporal punishment in schools is outlawed with the resultant undisciplined, unproductive and destroyed youth of a permissive culture in the west, it does not mean Malaysians have to necessarily stop spanking their kids or disciplining them when they are wrong and out of order. A simple analogy.

    What the prosecution is arguing in Anwar’s case is a case of rape. It is non-consensual anal intercourse. [Anal intercourse] is unhealthy, unhygienic, likely to cause injury for the absence of natural lubricants provided by the vagina in normal and consensual intercourse.

    Further and finally, if we are to legalise sodomy, then suffer the children of our societies.

  24. Realist says:

    Many are of the opinion that government has no business in my woohoo sessions — no one has the right to say who I’m banging as it’s a personal thing that takes place in my privacy. As long as it is consensual, no one has the right to say if it is immoral or not.

    [...]


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