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Sex and the constitution

HIV ribbon
IN mid-August 2009, the 9th International Congress on AIDS in Asia and the Pacific (ICAAP) took place. Amid discussions on medical, biological, funding and governance issues, there was a very healthy track packed with much debate — as well as much angst — about human rights issues.

The idea that human rights is essential for any human being to enjoy good health was first articulated by the late Dr Jonathan Mann, former head of the World Health Organisation’s Global Programme on AIDS. The phenomenal growth of the AIDS pandemic, currently affecting over 33 million people globally, has shown that those most vulnerable are invariably those whose rights are most neglected or suppressed. Thus we find HIV affecting women, injecting drug users, sex workers, migrant workers, and men who have sex with men in rates far higher than other more empowered groups.

In Asia, good news regarding the human rights of any of these vulnerable groups is uncommon. But ICAAP managed to showcase one outstanding case. On 2 July 2009, the Delhi High Court ruled that Section 377 of the Indian Penal Code — the one dealing with “unnatural offences” and “carnal intercourse against the order of nature” — “criminalises consensual sexual acts of adults in private, [and violates] Articles 21, 14 and 15 of the [Indian] constitution”.

How this came about is instructive in itself. The Naz Foundation (India) Trust organises sexual health programmes for men having sex with men (MSM). Section 377, however, discouraged participation in these programmes and condom distribution because MSM feared arrest or police harassment.

Aided by the legal advocacy group The Lawyers Collective, Naz Foundation initiated a legal challenge against the government of India questioning the validity of Section 377 — legislature that, as in many Commonwealth countries including Malaysia, is a colonial relic that has stood since 1860.

The Lawyers Collective argued that Section 377 is “void in its application to private, adult, consensual sex” as it violates Article 21, which upholds the right to life and personal liberty; Article 14, which upholds the right to equality and equal protection of law; Article 15, which prohibits discrimination on grounds of sex; and Article 19, which upholds the freedom of expression.

Long walk to freedom?

It took eight years, with many setbacks and objections, primarily from religious groups as well as the Ministry of Home Affairs, which filed an affidavit stating that “although consenting adults are not prosecuted, the law must be preserved to discourage deviant sexual practices.” However, the petition also had the support of the National AIDS Control Organisation (Naco) of the Indian Ministry of Health and Family Welfare, which “averred that criminalisation drives MSM underground, impeding efforts to contain HIV.”

(Pic by El Squ /
In his judgment, Chief Justice AP Shah further elaborated: “If there is one constitutional tenet that can be said to be the underlying theme of the Indian constitution, it is that of ‘inclusiveness’. This court believes that the Indian constitution reflects this value deeply ingrained in Indian society, nurtured over several generations.

“The inclusiveness that Indian society traditionally displayed, literally in every aspect, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not [on] that score excluded or ostracised.”

The court further affirmed: “In our view, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of what LGBTs (lesbians, gays, bisexuals, transgenders) are. It cannot be forgotten that discrimination is the antithesis of equality, and it is the recognition of equality that will foster the dignity of every individual.”

Are there lessons for us from the Delhi ruling? It all depends, as Justice Michael Kirby of the Australian High Court has pointed out, whether we have the same provisions in our Federal Constitution. However, it does behoove us to consider whether, 52 years after Independence, we should still be tied to an antiquated law from colonial times based on the social mores of Victorian-era white men who had a dim view of anyone different from them.

The Indian ruling by no means completely decriminalises sex between those of the same sex. It is still a crime if the sex act involves minors or is non-consensual. Indeed, the court advised the government to amend the law related to sexual offences in line with the Indian Law Commission’s recommendations, which advocated repealing Section 377 and making rape law gender neutral. But, rather than refusing to acknowledge the existence of MSM, the court strove firstly to prevent discrimination on the basis of sexual orientation, and secondly to enable public health programmes to be made more effective.

Status vs vulnerability

The fact of the HIV epidemic has proven to be a major opportunity to challenge many human rights violations in every society. For instance, there is a clear correlation between the status of women and the rates of HIV among them; the lower the status, the higher the rates.

Having said that, such rights are inherent to every individual, regardless of whether there is a HIV pandemic or not. Women’s rights are human rights. So are the rights of every human being to be what they are, as long as they bring no harm to others.

It has yet to be proven that simply being a homosexual man or woman, or transgendered person, is harmful to anyone else. However, the type of discrimination that these persons face directly contributes to their inability to either access education about prevention or the means to that prevention, such as condoms or clean needles, thus making them vulnerable to infection.

The pressure to bow to society’s mores forces many MSM to marry, in consequence passing along the virus to their wives, while discrimination in employment forces many transsexuals into sex work. The elimination of such social discrimination therefore would greatly improve public health in general.

Unfortunately, effective HIV prevention in Malaysia is held hostage by the current political climate that pits conservatives against more practical health and legal advocates. Even more disturbing is that conservatives span the entire political spectrum, even among health practitioners and lawyers.

Any move towards legal changes, including laws that would decriminalise drug use in order to facilitate better prevention and treatment, would face an uphill battle. Considering that we are still fighting for women’s rights for control over their own bodies, the outlook for the rights of citizens of different sexual orientations doesn’t look very bright.

See also:
Rethinking Malaysia’s sodomy laws
Mandatory testing flawed

Marina Mahathir is an activist, writer, and blogger who constantly needs more outlets to vent because there is never a shortage of issues to vent about. She is the former president of the Malaysian AIDS Council.

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4 Responses to “Sex and the constitution”

  1. Sean says:

    “white men”

    The world is a different place to how it was 50 years ago – except in Malaysia, where ‘white men’ have been in short supply this last half century. While ‘white men’ can now practically get their ‘groove on’ on prime-time TV as a matter of constitutional right in ‘white men’ countries, in Malaysia you still want to blame ‘white men’ for your own problems? What ‘white man’ stopped you changing your laws they way ‘white men’ changed ‘white men’ laws in ‘white men’ countries?


  2. pang says:

    I like the comment that Marina made during Seksualiti Merdeka’s launch when she officiated it (Sat, 15 Aug 2009). She said that opposition to homosexuality always claim that it will break apart families and it will also lead to the collapse of society. She argued that that is a confused stance to take. She said that if a family were to accept and love their children no matter their sexual orientation, then they are clearly NOT broken apart. And as families form one of the fundamental units of society, then a society of loving families surely won’t collapse because of love…

  3. Felix says:

    I like Marina’s article and the cartoon couldn’t be more apt. I am excited about what happened in India. If India can do it, why can’t Malaysia? Conservative law-makers in this country seem to make it their duty to uphold traditional rules over and above human compassion and common sense. Is that what they call morality?

    Must we wait another 50 or even 100 years to get over such narrow-mindedness? Homosexuality leads to broken families and the collapse of society? How ignorant! When gay men are forced to marry, they may end up divorcing their wife years later. That breaks up the family, not when a family accepts a gay son with open arms! The full acceptance of LGBTs in the community does not lead to any collapse but discrimination or stigmatisation does. Thank you Marina for highlighting the importance of human rights for everyone regardless of gender or sexuality.

  4. screwed up says:

    “the outlook for the rights of citizens of different sexual orientations doesn’t look very bright”

    Former president of the Malaysian AIDS Council, wanting equality for homosexuals.

    Contrary to the prevention is better than cure concept…heck, let’s campaign for the rights of drug users and [sex workers] who also significantly contribute to the pandemic..signs of the end of the world….[…]..too much believe in your equal rights religion [….]..jeezzz….

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