Privacy, LGBTs and sections 377A & 377B: Part 1

Elton John and partner |

Sections 377A and B of Malaysia’s Penal Code have long been haunting the nation’s LGBT-aware crowd. As of today, several well-written articles regarding these legal provisions have been published online. However, I wish to compose this piece as a simple one for the layman.

S.377A reads as follows:

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.

Here, it seems that mere penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.

S.377B stipulates the punishment as follows:

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 liable to whipping.

Following closely the legal development on both the provisions, I find it timely to share some of my insights and research results. Here are a few salient points:

Firstly, the sections punish the “giver” and “receiver” who perform oral and anal sex, regardless of their sexuality. In other words, everyone who sucks or fucks another person could be punished. Also, the person who is sucked or fucked could be punished. Imagine one dick-sucking moment of pleasure with a possible consequence of an up to twenty-year jail sentence and whipping! ( Note: “giver” refers to the person who penetrates the “receiver” orally or anally.)

Dato Dr. Siti Zaharah Sulaiman can be found in the Hansard of Parliamentary debates on these sections, i.e. sections 377A and B stating that the provisions penalize both “givers” and “receivers”. She reasoned that this law serves to punish a pondan who commit the act with another pondan. I must say I personally feel very disgusted by the dysphemism used, i.e. “pondan” and cannot embrace her logic and disrespect towards the T group in LGBT’s “T”(IPA). (Note: L=Lesbians, G=Gays, B=Bisexuals, T=Transgenders, I=Intersex, P=Pansexuals, A=Asexuals)

Is Dr. Siti Zaharah correct in her opinions? Looking at the Malaysian cases regarding these two sections i.e. Kesavan Senderan v PP [1999] 1 CLJ 343, PP v Runjit Singh Jaswant Singh [1999] 3 CLJ 301, A Karim A Manaff v PP [2003] 5 CLJ 345, Sukma Darmawan Sasmitaat Madja v PP [2007] 4 CLJ 697, Dato Seri Ibrahim v PP & Another Appeal [2004] 3 CLJ 737, Dato’ Seri Anwar Ibrahim v PP [2010] 6 MLJ 585 and PP v Goh Kim Keat[2011] 7 MLJ 274, it appears that only the “givers” are sentenced for punishment while the victimized ones are not.

It SEEMS like being a BOTTOM is well safer than a TOP!

I have left out the most recent case – Abdul Rahim Abdul Rahaman v PP [2010] 8 CLJ 519, [2011] 2 MLJ 28. Let’s deal with this case in Part II.

Secondly, the word “any person” should be construed as a male or whoever who has a penis, including a transsexual or gay. The words “another person” will include everyone because everyone has an anus and mouth. That’s the basic understanding that most layman has.

Now, let’s drill a little bit deeper to see what is not within this provision and whether it has grossly violated fundamental rights guaranteed under Malaysian Federal Constitution.

Firstly, the provision does not recognize the notion of privacy. In other words, any gay who has sex with another gay, either orally or anally, even in a private place, is liable to be punished under section 377B. Cross-referring to one well-written article- Right to Privacy in Malaysia: Do we have it?, I would say that Malaysia does uphold rights to privacy, although this was said in passing in Sivarasa Rasiah v Badan Peguam Negara [2010] 3 CLJ 507. I shall not go into rebutting arguments laid in the infamous Ultra Dimension Sdn Bhd v Kook Wei Kuan [2004] 5 CLJ 285, where the judge said that:

privacy rights is not included and not provided under art.5(1) of the Federal Constitution.

The judge was adopting a literal interpretation to Part II of our Federal Constitution. This decision should be read in light of Lee Kwan Woh v PP [2009] 5 MLJ 301, where the Justice Gopal Sri Ram enunciated one of the principles on interpretation of the constitution, holding that the court shall interpret the constitution in light of the humanizing and all pervading provisions of the article in question.

With all due respect, I would submit that the literal interpretation adopted by Ultra Dimension is erroneous for the reason that Article 5(1) of the Federal Constitution is not taken in the humanizing and all pervading provisions of the article – the well-known prismatic approach.

To further clarify the rights to privacy, according to Dr.Nehaluddin Ahmad in “Rights to Privacy and Challenges: A Critical Review” [2008] 5 MLJ cxxi; [2008] 5 MLJA 121., there are basically four types of privacy  – these include “territorial privacy” – which is what gays would be concerned about vis-à-vis this provision. Territorial privacy is about the setting the limits on intrusion into domestic arrangements or environments such as private places. Gays are always concerned whether such laws have intruded into their territorial privacy within the confines of the bedroom.

In order to determine whether sections 377A and B could possibly infringe the right of privacy of a gay man, the threefold test laid down in Sivarasa Rasiah v Badan Peguam Negara and Anor [2010] 3 CLJ 507 must be employed.

Firstly, all forms of the state action whether legislative or executive that infringe a fundamental right must have an objective that is sufficiently important to justify the limitation of the right in question. Secondly, the measures employed by the relevant state action must have a rational nexus to that objective. Thirdly, the means used must be proportionate to that objective it seeks to achieve.

Applying the test, it is submitted that the breach of fundamental rights of privacy of gays in Malaysia through sections 377A & B is not justified based on the original intention of the legislator to prevent harm towards minors (apparently from Hansard) or to fill up the lacunae in a rape law. Sections 377A and B do not even pass the first test!

In fact, sections 377A & B borrow the notion of carnality and sinfulness from the Victorian era into Malaysia, which have directly affected the fundamental rights of privacy of a targeted group, the LGBT(IPA). The reason is clearly explained in the case of Naz Foundation v Gov. of NCT of Delhi and Others WP(C) No. 7455/2001; [2009] 4 LRC 838, enunciated the principle as follows:

“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set”

Do I need to say anymore? Our fundamental right as being an intimate gay is violated and still being violated, but will not be violated if we make a change in the law. Think about the protest against Elton John’s concert for reason he is gay or whatever reasons. His personal privacy with his partner has nothing to do with his career.

My advice is: let’s learn about each other – the LGBT(IPA) community and the general public at large. Please do recognize our co-existence in this universe.

Befriend gays, be gay, and be cool.

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

Posted on 1 November 2011. You can follow any responses to this entry through the RSS 2.0.

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