MALAYSIA’S SODOMY LAWS: PROGRESS WITH THE TIMES!

By Dr Kua Kia Soong, Director of SUARAM, 12 Dec 2009

Ever since the political trial against Anwar Ibrahim for sodomy in 1999, I had been hoping that the gay community in Malaysia (“the pink brigade”) would have spoken out against our antiquated sodomy laws and fought for equality of treatment for all consensual sex between adults. I have always believed that the rights of any section of our community must be fought for and led by that particular section, for only then can the exploited and those transgressed against be empowered in the process.

All over the world, not just in the West, the times are certainly changing. On 2 July 2009, the Delhi High Court delivered a historic judgement to amend a 149-year-old colonial-era law and forthwith decriminalised private consensual sex between adults of the same sex. India became the 127th country to take the guilt out of homosexuality. Only rape and paedophilia remain offences under the law.

Inclusiveness

The Delhi bench invoked Jawaharlal Nehru's politically resonant theme of inclusiveness:

``If there is one constitutional tenet that can be said to be (the) underlying theme of the Indian Constitution, it is that of inclusiveness…

``Those perceived by the majority as `deviants' or `different' are not on that score excluded or ostracized.'' (The Times of India, 3 July 2009)

Equality

The Delhi High Court further ruled:

``Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs (lesbians, gays, bisexuals and transgenders) are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual…

``There is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality.''

Article 8 of the Malaysian Federal Constitution guarantees the equality of all persons. If this is not specific enough, the Malaysian Charter on Human Rights by Malaysian Civil Society in 1994 spells this out more specifically:

“There shall be no discrimination in the rights and privileges of persons based on their ethnic origin, class, social status, age, sex, mental and physical being, language, religious belief, sexual identity or political conviction…” (Article 8: 2)

Recently, Judge Jonathan Heher of the Johannesburg High Court struck down South Africa's sodomy law on the grounds that it violated the nation's new constitution which bars discrimination on the basis of sexual orientation:

“To penalize a gay or lesbian person for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences of religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history."

Just a few months earlier Ecuador's Supreme Court ruled that nation's sodomy law unconstitutional. And Romania's new prime minister recently promised to repeal his nation's sodomy law to bring it in line with that of the European Union.

Pragmatism

Even closer to our shores, the attitude of our southern neighbour, Singapore, to homosexuality is also changing. In April 2007, Minister Mentor Lee Kuan Yew said in a Reuter’s report:

"If in fact it is true, and I have asked doctors this, that you are genetically born a homosexual -- because that's the nature of the genetic random transmission of genes -- you can't help it. So why should we criminalize it? …Let's not go around like moral police ... barging into people's [bed] rooms. That's not our business… So you have to take a practical, pragmatic approach to what I see is an inevitable force of time and circumstances."

Lee said Singapore should no longer discriminate against homosexuals but must take a pragmatic approach. Lee's comments came at a time when many groups, such as The Singapore Law Society, are clamouring for a review of antiquated British colonial laws against homosexual sex, which they view as outdated and archaic.

Humanity

The plight of Malaysian transsexuals such as Fathine, is but the latest in a litany of woes suffered by lesbians, gays, bisexuals and transgenders (LGBT) in this country. For a society that claims that our Asian values are far superior to Western values, such demeaning treatment of our LGBT community is unacceptable. What has happened to that slogan by the BN government to create a “masyarakat penyayang” (a caring society) ?

Stand Up For the Rights of all LGBT

On the grounds of inclusiveness, equality, pragmatism and humanity, it is time for all progressive Malaysians, political parties and organisations to stand up for the rights of all LGBT and to call for the abolition of our outdated sodomy laws.