Many check for the truth behind any fact before we write about it in support of our views. It is an often tedious but necessary process. For without ascertaining the truth behind any particular assertion, how could such an assertion come off as credible?
But it would seem that not all of us bother. One such person would be Wandering Malaysian in his piece, “Repeal Section 377” published by the Malay Mail Online on 16 April 2015. In his short article, Wandering Malaysian postulates that Malaysia should repeal Section 377 of her Penal Code that outlaws anal and oral sex, on the basis that other jurisdictions with the same statute have done so. He cites two examples, India, which according to him repealed the law in 2009 and Singapore, which in his words “modified” its law in 2007 to exclude consensual anal and oral sex.
There is a problem with the assertion that India repealed its law. It hasn’t. Section 377 of the Indian Penal Code, enacted (not drafted) in 1860, is well and alive on the Indian statute book. It was indeed challenged for its constitutionality before the New Delhi High Court in 2009 (refer to the case of Naz Foundation v Government of New Delhi) and was subsequently declared unconstitutional by the same court. But it seems like Wandering Malaysian has conveniently overlooked the fact that the law was subsequently validated by the Indian Supreme Court in its most recent decision overruling that decision in 2013. By doing so, the Supreme Court of India ruled that Section 377 was not unconstitutional and only the Indian Parliament had the right to repeal the section and not the courts. The Indian Parliament has however yet to repeal the section. So, if we are to “follow the Indians” as Wandering Malaysian suggests, we should keep the law, not abolish it.
Wandering Malaysian has also not been entirely transparent on the other example he uses, Singapore. While it is true that Singapore has repealed Section 337 of its Penal Code and removed the ban on sodomy pursuant to its 2007 criminal law reform, it has however maintained a similar but not exactly the same provision, Section 377A, in is Penal Code on gross indecency. Gross indecency criminalises homosexual conduct between adult males without the need to prove penetration, and is thus quite different from sodomy. This gross indecency provision is derived from Section 11 of the Criminal Law Amendment Act 1885 in the UK and is a catch all provision – the so-called Labouchere Amendment. But get this, the Malaysian equivalent, Section 377D, was amended in 1989 by the Penal Code (Amendment) Act 1989 to remove the word “male” from the provision. Thus it is now possible for females to be found guilty of gross indecency, which augurs well for gender equality. This was even before our Constitution was amended to prohibit discrimination on the basis of gender in 2001.
Lastly let’s clear the final piece of misinformation resulting from Wandering Malaysian’s article, that of Section 377 being rarely used. Statistics of prosecutions under section 377, which have recently been forwarded by the Attorney-General’s Chambers to the Malaysian Bar after the latter made a similar claim in its infamous press release of 11 February 2015 that implicated the Malaysian judiciary in a non-existent conspiracy against Anwar Ibrahim, have showed that, on the contrary, hundreds of prosecutions occur under Section 377 of our Penal Code before our Sessions Courts each year at least since 2009. It is only that few of them reach the High Court, probably because most criminals do not have the resources to pursue their appeals that far. One such instance is the case of Abdul Rahaman Abdul Rahim, which occurred in 2010 — years before Anwar Ibrahim’s most recent conviction.
This author would like to part with some words of advice to Wandering Malaysian. With all due respect to your views, please check your sources before you write in support of them. To do otherwise and have others point out your mistakes takes the wind out of the sails of whatever you intend to champion, and is no doubt very embarrassing, both for yourself and for others who know better. Verify before you write, alright?
*Faidhur Rahman Abdul Hadi is a practising lawyer in Kuala Lumpur, and Co-Founder of Concerned Lawyers for Justice.
**First published in The Malay Mail Online, 20 April 2015