The 377B Decision We Waited For

The Court of Appeal does an about turn and issues its scintillating grounds of judgment on the Abdul Rahim Bin Abd Rahaman appeal about the constitutionality of section 377A and 377B of the Penal Code, and punishment of whipping for males.

It would appear complaining has some semblance of use. After lamenting about the ducks in the court of appeal and about written grounds being optional, the Court of Appeal has issued its judgment after initially declining to issue grounds because it supposedly did not arise. Since we were the counsels for this matter, Amer and I shall refrain from comment on the Abdul Rahim Abd Rahaman Decision and let you consider it for yourself.

The list of authorities relied on by Amer and I at the hearing of appeal are as follows:

Merdeka University Berhad v. Government of Malaysia [1981] CLJ 175
Public Prosecutor v. Khong Teng Khen [1976] 2 MLJ 166
Badan Peguam Malaysia v. Kerajaan Malaysia [2008] 1 CLJ 833
Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 1 CLJ 701
Sheridan & Groves, The Constitution of Malaysia, 5th Edition, Malayan Law Journal, 2004, page 89
Datuk Haji Harun bin Haji Idris v. Public Prosecutor [1977] 2 MLJ 155
R v. Leo de Cruz [1935] MLJ 1
Bachik Abdul Rahman v. PP [2004] 2 CLJ 572
PP v. Teo Heng Chye [1990] 3 CLJ (Rep) 904
PP v. Shari Mohd Shariff [2005] 5 CLJ 439
Jamil Jaya Said v. PP [2009] 5 CLJ 244
Section 3 of the Criminal Justice Act 1953
Zaidon Shariff v. PP [1996] 4 CLJ 441
Permbangunan Maha Murni Sdn Bhd v. Jururus Ladang Sdn Bhd [1986] 2 MLJ 30
Section 57 of the Evidence Act 1950
Public Prosecutor v. Sharma Kumari [2000] 6 MLJ 254
Article 8 and 10 of the Federal Constitution
Section 289 of the Criminal Procedure Code
Sivarasa Rasiah v Badan Peguam Malaysia [2010] 3 CLJ 507
Naz Foundation (India) Trust v. Government of NCT Delhi WP (C) No. 7455/2001)
Lee Kwan Woh v Public Prosecutor [2009] 5 CLJ 631
Mt. Choki v The State (1957) Cri LJ 102
Ramchandra Mahton and Anor v State of Bihar and Ors, AIR 1966 Patna 214
Public Prosecutor v Khong Teng Khen [1976] 2 MLJ 166
Bindra’s Interpretation of Statutes, 10th edn, pp. 1269-1273
Kathi Rasing v State of Saurashtra AIR (39) 1952
Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30
B. Surinder Singh Kanda v the Government of the Federation of Malaya [1962] 28 MLJ 170

LB: Fahri Azzat was a Tyrannosaurus Rex named ‘Bob’ in his previous life during the tail end of the Cretaceous period and was reincarnated as a 21st century LoyarBurokker despite being imbued with the character and abilities of a late 19th century dilettante dandy. His current ambition right this very moment is to wear a top hat and coat tails while shopping for fake luxury watches at Petaling Street on a hot day.


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Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

Posted on 30 August 2010. You can follow any responses to this entry through the RSS 2.0.

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11 Responses to The 377B Decision We Waited For

  1. karmern

    Hello Fahri.

    Thanks for the clarification.

    The judgment freaking sucks then because now it appears as if s. 377B infers that homosexuality is illegal.

  2. Hi Karmern, I am not surprised if that is what those fellas from AGC told you. It is my fervent wish that the usual AGC Federal Counsel or Public Prosecutor is more nuanced in their appreciation of the diversity of sexual practices and orientations in this world. With respect to your question, I actually argued both facets as you have set them out. In both circumstances, it is discriminatory based on gender. No doubt heterosexual men can perform anal sex with the opposite or same sex too and in my view if they find a willing partner, they should be allowed to do so as well. But this fact is not really necessary or even relevant to our arguments. Aside from all these arguments based on sex, Amer also argued about the whipping provision being unconstitutional. Heh, nobody seems interested in that issue!

  3. karmern

    Hello Fahri.

    I was speaking to a bunch of people from AGC the other day and they thought that "homosexuality" includes transsexuals, intersexed dan lain-lain yang praktis seks songsang. Of course you are well read. I was only afraid that some of the lovely readers may take the judgment at face value without really know what was being argued. Sorry kalau terasa…!

    Are you saying that this provision is discriminatory towards homosexual men because it prevents them from exercising their sexual preference (as the only way to have sex is penis through the anus), or are you saying that it discriminates all men because they have a penis? Many heterosexual men perform anal sex with members of the opposite sex and some heterosexual men love anal sex with other heterosexual men too.

  4. Hi karmern, to show the inequality as between homosexual men and homosexual women in the exercise and execution of their sexual preferences. Women can do but men cannot. That's what section 377B does and so it is discriminatory.

    Further, I am well read enough to know that there is no distinction between homosexuality be it male or female in terms of classification. You should bear in mind that what you are reading is a purported summary of my argument.

    Thanks for the comment!

  5. karmern

    “Learned counsel ventilated that homosexuality should not be illegal as lesbianism is not.”

    homosexuality refers to both male and female so it should be read as “homosexuality should not be illegal”, full stop.

    Why was there an attempt to compare the rights of a gay man to the rights of a gay woman, learned counsel?

  6. Azira: I wish I still had the enthusiasm and clear headed idealism you have that can be seen in your thirst for a good read in the law reports. Have a look through the law reports for the judgments of recently retired Federal Court Judge Abdul Aziz Mohamad J. There are also some gems amongst the judgments written by some serving Judges or Judicial Commissioners now, which you can find if you look hard enough.

  7. Fahri fahri fahri .. this is why you should be on twitter. Then you would have seen Roger Tan correcting someone to point out that the plural of counsel was also counsel ;)

  8. tthe original judgme

    Oh by the way, just realised that perhaps the constitutional issues were indeed argued in vacuum.

    ROFLMAO!

  9. ladymissazira

    Is it just me or it seems that judges are getting more and more blase and uncaring about reconsidering interpretations in regards to the federal constitution. Judges seem shy unless it's in favour of the ruling government.

    We are at mercy of their whims and fancies.

    Ironically though, the judgements in MLJ and CLJ are getting longer and longwinded as opposed to the older judgements where it was mostly short and sweet (those two column versions). Kepala pun tak pening nak baca.

    Today, only few judges like Abdul Malik J's judgements are a delight to read especially for noviate aspiring lawyers like me.

    Just my two cents.

  10. m le

    Dearest Fahri and Amer

    Congrulationss!

    Typical of LoyarBurokkers – no judgment: complain; yes judgment: complain.

    But good, complaining works, and it means judges read your website too?

    Been told some sitting and retirend judges have made good and bad comments about this site.

  11. tthe original judgme

    What a lucid piece of judicial literature the CoA's judgment is.

    "without the suitable facts and antecedent supporting the constitutional questions, the issues were therefore argued in a vacuum. yada yada yada…this case was thus not the appropriate case or platform for the constitutional arguments to be canvassed."

    Translated to normal day to day linggo, that means:

    I don't fucking care less what you say and I have no time nor the ability to understand what you said and therefore please go and fly the proverbial kite.