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

Elton John and partner | MatrixPhotos.com

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

  1. Lucas T

    So what about the lesbians?

  2. listen and balance

    We are not afraid to talk on sexuality,what makes you think that ppl are afraid? I agree that the androgynous ppl shd be allowed right to determine their own sexual preference,because they are born with it,they deserve some address to the issue, but LBGT does not concern mainly on them,but majorly on the lesbians gays and transgenders,,now it's your right not to put religion as a barrier, but it's my right also to say that it's downright wrong and against the law of nature to be as what they want to be, and I base this not only on religion,but on the cultures and values we proudly hold since a long time ago. I stand to preserve this and Malaysia is different and special at heart from other country,especially the westerners.Why shd we follow them when we are very different from them? And fyi anonymous the event is not to legalize the LBGT but only to express their freedom of sexual preference,just to make your info correct, which i still then object to the event because its a lil footstep to a further demand, and probably a tool of a certain ppl to get attention and publicity in an international perspctives and what not,and also because the act itself is wrong, and they dont need more attention as it is, and i dont think most of them want it either,they have been living quietly in PEACEFUL and Malaysia has never ILLEGALIZE them from so livng in this country, I never heard of any being criminally abused because of them being them,,if there is any,it's because of the criminal itself,which he can commit to anybody but which happens to be one of the LBGT (just giving an example). Human rights are subjective,and can never be absolute,and you can only obtain one,if you are living on a land on your own,ALONE,so you can go naked outside all you want! (in case you also want the right to be naked in public as a human right as well,for example,)

  3. Anonymous

    I think and seriously feel that LGBTQ should be legalized. All the woo-haa happens just because Malaysians treated sexuality as a taboo. We're so afraid to talk about sexuality and even one simple task like sex education takes on numerous debates. Why can't we discuss openly about sexuality when each day you're having cases of baby dumping, raping and whatsoever. Why do the LGBTQs have to suffer? You might be lucky because you're born with the correct organs, but what about those androgynous people? Don't they have a right too? Who are you to decide what organs they should keep and discard when they're born to this world?

    Stop talking about religion because firstly, it is a tool used to control society. The children in certain tribes in Africa takes on male semen as an act of achieving masculinity, but does that mean they're gay? Ask any ethnographers conducting researches there and they could tell you that these people got married and practices heterosexuality relationship. Take circumcision as a clear example of sexuality in Malaysia. Female circumcision is almost never heard of although it is practiced in Kelantan. There are so many young Malay boys staying in asrama and condoning acts deemed as 'gay' such as playing with each other's penis, mock rape and etc. So, stop avoiding issues on sexuality and discuss it openly.

  4. I wish to give a comment here.. i think that though freedom of expression should be absolute,there shd also be some constraint,,either religiously or democratically..human rights are subjective..and the only way we can reconcile this is through consensus of the people of the same land.. so, let's look at the issue of LGBT in a broader sense..i'd say that they should not be recognised legally. Because in the prospect of being malaysians living in the malaysian land,for me (and i believe majority of the public), LBGT is something unfamiliar with our living life and moral values,,and therefore, we also have the right to object because it hurts our moralities and beliefs that we hold through years ago,it hurts the public.. yes LBGT is LBGT and its not their fault and they has the right to be just what they want to be,but to push for the law to recognise is a big thing..and as i said human rights are subjective,one would never get a totally absolute freedom of whatever rights..because the need of rights differs in very person..because we are living with people of differences.. you can get absolute freedom,only if you live in a land where there is only you ALONE. so i'd say, for LBGT to get their right in Malaysia, i hope they wont,because it's malaysia we are talking about,rich with its cultures,values and diversities that makes us unique..and if you really want your freedom of expressing your sexual preferences,then you yourself should seek lands that suits your needs,not to push the law of the land which then offends the public living on that land itself.

    • Gay and Malaysian

      " LBGT is something unfamiliar with our living life and moral values,,and therefore, we also have the right to object because it hurts our moralities and beliefs that we hold through years ago,it hurts the public.."

      No wonder they say ignorance is bliss.

      "so i'd say, for LBGT to get their right in Malaysia, i hope they wont,because it's malaysia we are talking about,rich with its cultures,values and diversities that makes us unique…"

      uniquely oppressive.

      "and if you really want your freedom of expressing your sexual preferences,then you yourself should seek lands that suits your needs,not to push the law of the land which then offends the public living on that land itself."

      I don't know since when Malaysia belongs exclusively to you and other like-minded people. I am a Malaysian citizen and I am gay. I pay 6% government tax when I buy a McD burger like everybody does, who the fuck are you to tell me to "seek lands that suits your needs"? Exactly the same sort of person who would tell Chinese and Indians to "go back" to China and India.

      I am a Malaysian citizen; I will stay and get my men-fucking rights here. You will either change your position or be outdated in 30 years time. Take care.

      • anonymous

        But it's our rights also to have a living lifestyle in a proper order..i also think LBGT should not be legalised..I'm a Malay and I'd say that yes, it is in contrary with the values that i hold, values and cultures i've been living with..if outdated you are saying..then outdated i will be,because there is a need to preserve what it is..we are different from the westerners,,totally different in all aspects of living lifestyle,values and cultures,so if they legalise this,I'm not surprised, but a big NOo for malaysia.
        I think the fact that you are saying that we are ignrance here are totally wrong..we reckon the existence of them, but we cant do anything more than that,,we are only protecting our rights to live with a peace of mind and proper social order..and I believe our rights overrides yours,in a way that it concerns the public.

  5. Umar

    i still believe no one should be allowed for absolute freedom of expression.

  6. Umar

    so, are you condoning LBGT in our society? allow them express their sexual orientation openly?

    • Jackson Yee CS

      There is nothing to condone. Your question presumes the sins of LGBT.

      Everyone has freedom to speech including sexual orientation. I have never allowed or disallowed one to speak up his mind.

  7. FreeVoter

    So would a wife who performs oral sex on his husband considered legal? How about a husband performing anal sex with his consenting wife, is that OK?

    • Jackson Yee CS

      No, it’s illegal, theoretically.

      No, it’s also illegal even with consent, theoretically.

      Sorry to say that :(

  8. Charles Leviathan

    Am I getting this right? So, if guys stick their dicks into armpits, thighs, feet, hands, elbows, behind the ear, lips, eyes, noses, necks and anything else, it's fine. But if it enters the mouth or the anus – boom 20 years jail?!

    Elton John should make a pre-concert statement before arriving in Malaysia – me and my husband have decided that as a respect to the ridiculous laws of Malaysia, we will be sticking our dicks into each other's everywhere, except the mouth and anus. Just while we are in Malaysia.

    Damn. Talk about a ridiculous law…

  9. andi suraidah bandy

    just cannot wait for the 2nd part to come