Examining homosexual laws in Malaysia

Section 377 of the Penal Code criminalises gay sex.It also deals amongst other things with anus and oral sex. For purposes of clarity the author will confine the discussion to its relationship with homosexuality. It comes under Unnatural Offences 377. Under section 377A which relates to carnal intercourse against the order of nature it is provided that 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. The explanation states that penetration is sufficient to constitute the sexual connection necessary to the offence described in this section. The unnatural sex would also refer to oral and anal sex. As to why it is deemed "unnatural, a post in http://www.malaysiabrides.com/ referred to provisions of the Old Testament of the Bible, where oral and anal sex was considered to be "against" the order of nature because of the "waste" of sperm and the sex act itself. Traditional sex was deemed to be the typical vagina meets penis. Foreplay wasn't even discussed - of course kissing was allowed but anything else was considered to be debauch behaviour. The punishment for committing carnal intercourse against the order of nature under section 377B provides for imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. The learned view of Mallal's Penal Law (at page 643) states that penetration alone will suffice for an offence and it need not be a fully completed act.The degree of penetration necessary to constitute an offence would be a matter of fact to be determined by the courts. Since the section is dependable on the introduction of the penis into the anus or mouth of the other person, therefore the word "any person" would only make a male liable since only a male can make the said penetration. The male or female partner whose anus or mouth is penetrated by the offender, will not be liable under this section, even though they consented to the act [see Mallal's Penal Law at page 643].

The laws are a relic of the British colonial era. The sodomy laws were introduced in the late 1870s by British administrators, about 20 years after the first such law was drafted by Lord Thomas Macaulay for the Indian Penal Code.Similar sodomy laws were adopted by other colonies, such as Australia, Bangladesh , Canada, Hong Kong, the Straits Settlements , Pakistan and Sri Lanka.Australia, Canada, Fiji and Hong Kong, have all repealed the laws. The UK legalised sexual acts between two adult males in 1967. Indian activists are currently challenging Section 377 in court. So that these laws would be more of a British thing albeit from a far more conservative era. Interestingly homosexual acts remain punishable by death in several countries, including Mauritania, Nigeria, Saudi Arabia and Sudan.Even some countries which have such sodomy laws are still reluctant to discard them.Malaysia's neighbour Singapore repealed Section 377 in 2007. But retained Section 377A, which specifies a 2-year jail term, as its Prime Minister concluded Singapore was still a conservative country uncomfortable with homosexuality.One needs to be careful when comparing the Malaysian Penal Code with that of Singapore. Malaysia's Penal Code is numbered differently from Singapore's. And its provisions differ too.

As for Malaysia do not expect the repeal of these laws any time soon . If these laws are repealed then it would pose a major headache for the ruling coalition . It would prevent them from throwing sodomy charges agaist politicians deemed to be a threat.So apparently there is some use of these laws although for the wrong reasons and against the wrong persons.

Post was written by the author of this blog with some provisions extracted from http://www.malaysiabrides.com