Should homosexuality be a crime in Malaysia?

Right now, it is a crime.  Have no doubt about that.

But it may not remain so for long.

Homosexuality is usually defined as the romantic attraction, or sexual behavior, between members of the same gender.  The Malaysian Penal Code defines it as something entirely different.  It condemns it as an ‘unnatural offence’. Section 377A criminalises it as  ‘carnal intercourse against the order of nature’.

The Malaysian Penal Code is a replica of its Indian twin. The Indian Code was first drafted in 1860.  The British Raj passed it into law in 1862.

Thomas Babington Macaulay was the main cause behind the Indian Penal Code.  He was a Whig. They were zealous idealists. Macaulay divided the world into two parts: the civilised world, and the barbarians. According to Macaulay, Britain represented the pinnacle of the civilised world. The rest were barbarians.

It was Macaulay that the British Raj put in charge of ‘westernising’ India.

When Macaulay drafted the Indian Penal Code, he brought the whole raft of the English 1533 Buggery Act into India. It penalised sodomy.  In the crime of sodomy that the parties acted with consent was irrelevant. That they performed these acts in private was immaterial. The punishment for sodomy – then – was death.

That old law brings us to a man called Oscar Fingal O’Flahertie Wills Wilde.

The circumstances of his imprisonment and death are not well known.

He was an Irish poet and playwright. In the early 1890s he was London’s most popular playwright. He is best remembered for his novel ‘The Picture of Dorian Gray’ [1890]. 

His dressing  was nothing less than flamboyant.

His writings, on the other hand, declare his biting wit.  For example he said,

‘Women are made to be loved, not understood.’

Of his friends he said,

‘True friends stab you in the front.’

The following quote hints at his sexual leaning: –

‘I choose my friends for their good looks, my acquaintances for their good characters, and my enemies for their intellect. A man cannot be too careful in the choice of his enemies.’

And then he said, fatally, as it turned out: –

‘I can resist everything except temptation’.

At the height of his success, the authorities arrested and tried him for ‘gross indecency’ with men.

The notes of proceeding of his trial are replete with his learning and wit. All that did not help him, for he was eventually convicted [under a law called ‘Labouchere Amendment,’ which criminalised homosexuality].  He was sentenced to two years of hard labour.

It was this ancient law that Macaulay brought to life in India.  He changed the sentence to life imprisonment, and imprisonment for a term of years.  Oddly, since 1862, the Indian Parliament has not seen fit to amend it. Macaulay’s zeal became a charter for criminalising sodomy all across the Colonies.

The Indian section 377 reads as follows:-

‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment’.

Malaya copied the Indian Penal Code wholesale. In 1989, Malaysia amended this definition and cut that part away from 377 and inserted it into a new provision. Section 377A reads: –

‘Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person to commit carnal intercourse against the order of nature’.

All that needs to be proven is ‘penetration’. The words in the Indian section 377,  and the Malaysian 377A, surprisingly, penalize  the sexual acts between a man and a woman. It says such acts are ‘unnatural ‘ and ‘against the order of nature.’

The definition catches other individuals as well. These are persons whose upper body comprises female characteristics while their lower body is endowed with male sex organs. However if a person has the lower body of a woman, then she cannot commit any offence under section 377A . But the legislature went after her as well. It  criminalised any conduct that were described ‘carnal intercourse against the order of nature’ [section 377B]. That was punishable with imprisonment up to 20 years.  And there was mandatory whipping.

Again, the new section 377D criminalised the conduct of any person …

‘… who, in public or private, commits, … any act of gross indecency with another person’.

Thus under the circumstances described by these sections, two consenting adults engaged in any sexual act – whether they possessed any male sexual organ or not – would commit a crime.

So only perfectly formed men and women were considered human.  The rest were cast aside.  The constitutional right to equality and privacy, and the equal protection of the law was denied to them.

So in this way, at least since 1862,  the authorities began to police the morality of the citizens.

These provisions were brought to public attention in a series of cases involving the then Deputy Prime Minister, Anwar Ibrahim.  That began in 1998. We have not stopped hearing about it ever since.

All that changed on 06 September 2018.

In Navtej Singh Johar & Ors. v. Union of India, & Secretary, Ministry of Law and Justice, the Indian Supreme Court was asked to rule on the constitutionality of section 377 of the Indian Penal Code.

You would not have missed the point that the Indian section 377 has an almost mirror image in the Malaysian section 377A.

The Indian Supreme Court ruled that sexual acts between two consenting individuals was an exercise of their right to privacy. Any law that criminalised such rights were, it declared, unconstitutional.

The separate views of the judges show how far India has advanced in its jurisprudence.

In considering the meaning of the phrase ‘against the order of nature’, Justice Chandrachud questioned the right of the Government to decide what is – or is not – ‘against the order of nature’. He asked:

‘What is the ‘order of nature’? [The] State cannot decide the boundary of what is permissible and what is not.

Chief Justice Dipak Misra and Justice Khanwilkar cautioned that:

‘Section 377 assumes the characteristic of unreasonableness, for it becomes a weapon in the hands of the majority to seclude, exploit and harass the LGBT community.  Bigoted and homophobic attitudes dehumanize.

One Judge, Rohinton Fali Nariman, ruled : –

‘When the State has no compelling reason to penalize same sex couple who cause no harm to others, it is a violation of fundamental rights’.

The court described the 156-year-old ‘tyranny’ enshrined Section 377 as being …

 ‘… irrational, indefensible and manifestly arbitrary.’

A lady judge, Justice Indu Malhotra, went further than her colleagues. [She had been directly elevated from the Bar to the Supreme Court].  She said: –

‘History owes an apology to members of this [LBGT] community and their families for the delay in providing [redress] for the ignominy and ostracism they suffered…’.

The effect of the Indian Supreme Court was to de-criminalise sexual acts involving members of the LBGTQ community.

The Indian decision calls into sharp focus the continued criminalisation of the Malaysian LBGTQs sexual life.

So the constitutionality of the Malaysian sections 377A, 377B, 377C and 377D is in grave doubt.

Malaysian criminal law must accord with the India’s Supreme Court ruling.  This is because the Malaysian Penal Code is the later twin of the Indian Penal Code.

The LBGT community ought to be treated with equality, dignity and respect.  And homosexuality should be decriminalised.

History has proven again and again that the LBGTQ community has produced artists, writers, poets, scientists, mathematicians, and singers. And includes a man you have all heard of: Alan Turing.

Turing was a brilliant mathematician, philosopher, and importantly, cryptanalayst. He broke the German codes during World War II, and saved millions of lives. All that counted for nothing, for, in 1952, he was found guilty for homosexuality under the very same Labouchere Amendment.  He was chemically castrated. He died in 1954. In August 2009, British programmer John Graham-Cumming  petitioned the British government.  He asked it to apologise for Turing’s prosecution as a homosexual.  In 2009, the British Prime Minister tendered a formal apology.  A parliamentary Act supported by many [including the mathematician Stephen Hawking] was passed granting a statutory pardon to Turing.  In August of 2014, the Queen granted a royal pardon to Turing.  Many posthumous awards have been conferred upon him:  too late.

Somewhere in this history, like a carp leaping in the moonlight, a silver line flashes.

And there have been many like him: The Russian novelist Nikolai Gogol. The actress Charlotte Cushman. The American poet Walt Whitman. Women rightist Karl Ulrichs. The author of more than 1,000 poems, Emily Dickinson. The novelist Henry James. The British General Kitchener, who brought peace to Sudan. Friedrich Krupp, the German Industrialist. The writer Marcel Proust. Novelist Virginia Woolf. Lawrence, the author of ‘Lawrence of Arabia’. The philosopher Ludwig Wittgenstein.  The pop icons Elton John, Freddie Mercury, Madonna, David Bowie, Lady Gaga. The classical composers Franz Schubert, Handel, and Tchaikovsky. Singer, songwriter George Michael.

The list goes on.

Instead of acting with compassion, and treating them as equals, embracing their talents and acknowledging their presence, we have treated them contemptuously, degraded their existence and pushed them into professions in the red light districts.

Where is our compassion?  Where is our love for equality for all?  We desire to be treated as equals, but we would deny it to others just because they are part of the LBGT community.  Isn’t that unbridled prejudice.

In doing all this, and maintaining the ‘holier than thou’ attitude, we are the losers.

Which brings us back to the story of the young Irish poet we spoke of earlier.  When he was released, he turned his back on his home, and left for France.  He would never return to Britain. At the young age of 46, he died destitute in Paris. And thus did we lose one of the most profound thinkers of the 19^th century. It is a pity he was not around until after 06 September 2018. If he had, Oscar Wilde would never have been convicted.