Equality, LGBTs and sections 377A & 377B: Part 2

Let’s continue dissecting the missing elements of ss.377A and 377B in pursuant to the Part 1.

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Right to Equality

It is submitted that notion of equality under article 8(1) of our Federal Constitution is grossly violated by these sections! What is equality? In layman terms, everything must be the same or identical for every human being. Is it that simplistic?

Under article 8(1), there are two distinct yet interrelated rights, i.e.: (1) the equality before the law and (2) the equal protection of the law. Under article 8(2), there are five expressed grounds where no discrimination can be committed against a person, one of which is gender.

Equality before the law is a dynamic concept having many facets. The most common facet is no one is above the law including a constitutional monarch. A law must operate alike on all persons under the like circumstances. According to PP v Khong Teng Khen [1976] 2 MLJ 166, “equality before the law” is not to be applied to any circumstances, or it is so general and universal that the State has no longer to have the power to distinguishing and classifying persons.

Equal protection of the law is well explained in Malaysian Bar v Gov. of Malaysia [1978] 2 MLJ 165. It proposes the reasonable classification test.

Firstly, the classification must be founded on a comprehensible difference, or intelligible differentia, which distinguish persons that are grouped together, from others who are left out of the group. Do you think that LGBT(IPA) grouping as one minority group is justified on any possible grounds? If so, is it reasonable?

Secondly, the differentia selected must have a rational nexus to the object that a piece of legislation that it sought to seek. Assuming LGBT(IPA) passes the first test, the next question is whether this grouping has a reasonable reason to be grouped as in LGBT(IPA) vis-a-vis the objectives in ss.377A and B? ( Note: The objectives of ss.377A and B were not  clearly explained during the parliamentary debate).

Bear in mind that one of the grounds in clause 2 of art.8 of the Federal Constitution is gender. In Naz Foundation case as mentioned in Part 1, “gendershall be interpreted as to include sexuality or sexual orientation and cannot be read as gender simpliciter.

One of the reason for such interpretation is to prevent behavior that treats people differently for reason of not being in conforming to generalization concerning “normal” or “natural” gender roles, of which it is socially constructed by the dominant, heterosexual society. Thus, any discrimination founded on gender is not permissible at any degree.

Discrimination

Looking ss.377A and B at the surface, it is neutral. It does not target identities but acts. However, in practice, it does end up unfairly targeting LGBT group.

Quoted from Naz Foundation case.

None of the cases listed in Part 1 is about one man and one woman, who have had oral and anal sex. As such, ss.377A and B have a far-reaching social implication which is to view all homosexuals as criminals.

According to Naz Foundation, when they are viewed as such, the whole community of LGBTs is marked with perversity and deviance. That was in India; in Malaysia, in the past one year, our media seems to highlight LGBTs’ issues on newspaper and online portals, either positively or negatively.

For example of the LGBTs’ issues, the legal gay marriage between Rev. Ou Yang and his partner in USA, Chinese lesbian marriage ceremony in Batu Pahat, the application of name and gender change of Aleesha Farhana, TV3 Show entitled “Pondan ancaman wanita”, “Wanita ancaman pondan” and the recent Malays rights authority, PERKASA’s  objection to the Sexualiti Merdeka 2011.

My general observation to the media is most of these issues were not handled professionally by the media. They used derogatory and insulting labels on the news, e.g.: seks GNASGNOS SONGSANG, pondan, overlooked the humanity of these loving, friendly beings and most importantly ignorant of the legal protection and guarantee under our Federal Constitution.

 

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Analysis of ABDUL RAHIM ABDUL RAHAMAN V PP

One of the most recent case which applied the “equality” argument to strike out the validity of ss.377A and B is Abdul Rahim Abdul Rahaman v PP.

In this case, our learned Justice Suriyadi Halim Omar, sitting in the bench of Court of Appeal, has held that the case was argued

“without the suitable facts and antecedent supporting” and “without the necessary nexus and mode of proceedings.”

The facts in this case were as follows. Abdul Rahim bin Abdul Rahaman was charged with 22 charges of sodomy under s. 377B of the Penal Code against a 14 years and 7 months boy. He was alleged to have committed the crime from 18 April 2007 to 9 May 2007. Imagine this guy was fu-sucking the victim for 22 times in 22 days! He was then sentenced to 60 years of imprisonment and 8 strokes of whipping and the appeal is dismissed.

With all due respect to Justice Suriyadi, there is a serious carriage of justice for one reason.

Judging from her judgment per se, the judge did not even consider or refer to the cases submitted by the defence counsel, the wise Mr. Fahri Azzat. The list of cases is available here. I do not see any reason why she could turn a blind ear to the forwarded cases. Instead, she should have, at least, elaborated the reasons why she did not accept such arguments in a few more sentences other than just merely stating “without the suitable facts and antecedent supporting” and “without the necessary nexus and mode of proceedings”. Without any detailed reasoning, the judgment seems vague and unconvincing to me.

In conclusion, “equality” argument is another path to challenge the validity of ss.377A and B. Every LGBT(IPA) activist, especially gay activist should be familiar with this string of legal arguments.:)

LAST NOTE: What can we do to help the Seksualiti Merdeka organizing committee in the fight of equality?


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Jackson Yee the chambeeeeee. Interested in advancing LGBT rights in Malaysia.

Posted on 9 November 2011. You can follow any responses to this entry through the RSS 2.0.

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10 Responses to Equality, LGBTs and sections 377A & 377B: Part 2

  1. chooiyen

    Eh excuse me, what? Am I hearing people say that human right is dependent on majority beliefs?

    What nonsense. A human right is an entitlement that EVERYONE has claim to; whether or not you're part of the majority does not change that AT ALL. If a freedom is only granted to a certain group of people and excludes others, that freedom is no longer a "right", it is a "privilege".
    So are you saying that the freedom to express my gender and sexual identity is a privilege that I can enjoy ONLY IF I act "correctly" (according to opinion of the majority) in relation to what sexual organ I am born with?

    And might I point out that the majority is not necessarily always right. There was a time when the majority thought it was "correct" for women to be relegated to the household; let the men make the decisions, that is the correct thing to do. To an extent, even the women internalized this belief. So if a woman was to decide to leave the house and get a job, would you say that she is not respecting the views and beliefs of the society? That she does not have the right to work because the majority thinks it's not correct?

  2. andi suraidah bandy

    I concur with Teoh Han Hui.

    Everybody should be equal before the law hence, the protection afforded to the heterosexuals must also equally enjoyed by the homosexuals.

  3. true malaysian

    the voice of minority shd be respected,,but the views of majority must be respected too

    • thats more like the majority is bullying the minority. does that means the minority (LGBT)have no right in this country??

      • true malaysian

        human rights are subjective. nobody can put a line to what is regarded as HUMAN rights,,thus I believe this should be reconciled through consensus of majority people living on the same land. If majority views are against it, this reflects the views of the public in that land itself. Yes everybody has rights, but rights are not borderless,one can only get absolute right to do anything if he live on a land on its own ALONE. Now it's this right,tmrrow ppl wld say they shd have right to be naked in public(??),right to abortion,right to prostitution,right to hve sex with animals,etc,etc,,,So to answer your question, yes they have no right to ensure their rights recognised in malaysia. i respect their sexual preference,but they shd have respected our beliefs and the preservation of our values and morals that we hold and proud of.,which is differnt from the westerners.

        • Joan

          I bet you're a man, aren't you? Because somehow, oddly enough it's always the men who are anti-abortion, yet funnily enough they're not the ones who have to go through 9 months of pregnancy and the great pain of giving birth, they think it's so easy to simply say "abortion is evil and shouldn't be allowed at all blahblah".

          • true malaysian

            Haha,,believe it or not..i'm a girl..:) and i'm just giving example,i didnt say i object or not object the rights,,it's subjective,we can only give opinions,but it all comes down to the majority public itself whether the public agrees or not agree to it. But yeah,you said oddly enough men who are always the one anti-abortion? haha..i dont know that either,,probably because they are imagining the pain! hahaha

          • Joan

            It's impossible to be able to properly grasp how much suffering one goes through unless you've experienced it yourself. Just throwing this out there, but Malaysia currently allows abortions under certain circumstances like if the mother's life is in danger, which is reasonable enough

          • Adam

            "their" rights and "our" beliefs?

            I think its clear enough which side of the fence you're on

        • Teoh Han Hui

          Human rights are rights we have as humans. It matters not where you live.