Let’s continue dissecting the missing elements of ss.377A and 377B in pursuant to the Part 1.
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  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  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, “gender” shall 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.
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.
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?
10 Responses to Equality, LGBTs and sections 377A & 377B: Part 2