L’égalité devant la loi, all Malaysians are afforded equal protection of the law under Part II, Article 8 of our Federal Constitution. An indispensable core value under any constitutional system (whether monarchical, parliamentary or democratic) seems particularly difficult to execute, so it seems.
Recently, forty religious officers backed by the police broke up a large Halloween party in Kuala Lumpur, detaining and questioning eighteen for cross-dressing and allegedly encouraging vice, twenty were eventually arrested. The authorities isolated Muslim participants and identified anyone that did not dress according to the gender they thought them to be.[i] Due to our dual-track legal system, this raid was targeted at a particular demographic. The irony of being arrested for dressing up during Halloween is remarkable. As of now, no formal charges have been read. At least two sections of the Syariah Criminal Offences (Federal Territories) Act 1997 seems to apply here:
· Section 28. Male person posing as woman
Any male person who, in any public place, wears a woman's attire and poses as a woman for immoral purposes shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding one year or to both.
· Section 29. Indecent acts in public place
Any person who, contrary to Islamic Law, acts or behaves in an indecent manner in any public place shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.
There are Syariah laws in all states with similar flavours. This begs the question, how is this reflected under criminal law? What is the state of legality for the LGBT community in Malaysia? Our Penal Code (Act 574) provides as follows:
· Section 377A. Carnal intercourse against the order of nature
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.
Explanation - Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.
· Section 377B. Punishment for committing carnal intercourse against the
order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be punished with whipping.
It is clear, under criminal law that only ‘carnal acts’ as defined above attract criminal punishment. In any case, criminal law does not prohibit consensual homosexual relationships only the abnormality of such sex. The popular association between 377A and gay men today is thus a curious one. Section 377A introduced in 1871 is an import from colonial rule, not as a piece of legislation to prohibit these kinds of sexual acts but as part of a broader set of morality laws that British rule instituted as a ‘safeguard’ for public morality in the Straights Settlements. Suffice it to say, it manufactures a morally virtuous stance to colonies from the reality of Victorian England, beneath the veneer of sexual purity and moral righteousness was a society thriving with all kinds of sexualities and erotic activities that the authorities rejected. As England itself moved towards legalizing homosexual relationships and marriage, it seems we have only adopted their regressive ways of governing and not its adaptive or progressive sense.
Having said that, we have seen recent monumental progress in combating the discrimination against the LGBT community. In 2021, a full panel of the Federal Court unanimously ruled that the Islamic provision used in Selangor[ii] was unconstitutional and authorities had no power to enact such a law:[iii]
“The State Legislatures throughout Malaysia have the power to enact offences against the precepts of Islam. The definition of 'precepts of Islam' is wide and is not merely limited to the five pillars of Islam. Thus, the range of offences that may be enacted are wide. However, the power to enact such range of offences is subject to a constitutional limit. It is not in dispute that 'liwat', which is one of the offences contemplated by s. 28 of the 1995 Enactment and with which the petitioner was charged, is against the precepts of Islam. However, the larger question was whether, notwithstanding its nature as being against the precepts of Islam, the SSL is competent to enact it, in light of the preclusion clause. The existence of the preclusion clause serves to restrict the States from making laws on subjects which remain within the domain of Parliament to regulate and enact within the general design curated by the FC.”
Despite this victory, Islamic laws banning gay sex still exist in some other states.[iv] Therefore, we can deduce that most discriminatory actions against the LGBT community is the result of policy or morality decisions. Any future action would logically be swayed by the type of politicians we elect. As the Latin maxim goes, vox populi, vox Dei.
Let us then look at some parallels. We are not the only ones that inherited 377A, in fact Singapore and India have the exact same section. Singapore’s highest court in February 2022 reaffirmed that their 377A is “unenforceable in its entirety” and poses no threat of prosecution.[v] Since then, the Singaporean government has introduced a bill that when enacted into law will repeal the colonial-era legislation (377A). It will be debated this coming November 28.
In India, the Supreme Court in a landmark judgement ruled that its 377 was “in so far as it criminalises consensual sexual acts of adults in private” and that “Respect for individual choice is the very essence of liberty under law and, thus, criminalizing carnal intercourse under Section 377 IPC is irrational, indefensible and manifestly arbitrary.” in a unanimous verdict abolishing 377 from its penal code.[vi]
Therefore, we observe that countries formerly under colonial rule have progressed to distance itself and even abolish such archaic laws. The impetus driving this progression is in no small part attributed to the changing attitudes of the government and public towards homosexuality. It is unfortunate that Malaysia is again one step behind, the area of the law authorities used against the LGBT community during that faithful Halloween night poses as discriminatory if not outright harassment.
As we usher in the new government, we should demand that it upholds the rule of law and refresh the archaic parts of legislation inherited during colonial rule.
References [i]https://www.reuters.com/world/asia-pacific/malaysia-questions-18-people-arrested-lgbt-halloween-party-2022-10-31/ [ii]Section 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 [iii]Iki Putra Mubarrak v. Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 465 [iv]https://www.straitstimes.com/asia/se-asia/malaysian-men-caned-for-gay-sex-under-islamic-law [v]Tan Seng Kee v A-G and Other Appeals [2022] SGCA 16 [vi]Navtej Singh Johar v. Union of India [2018]