Rethinking Malaysia’s sodomy laws

By Claire Brownell
thenutgraph.com

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 On 2 July 2009, India repealed its own Section 377.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.