A review of all Malaysian laws governing homosexual behaviour- Chapter 1

How many of us know our legal rights?
How many of us realize that " love" and " passion" that we have for another man will eventually lead us to criminal offences in the eyes of the law?
Yes, you are free to tell me -as a friend of yours , you do not know or realise that. But, in our legal system, our courts will not allow you to say so. Believe me or not,"Ignorant of law" can never be a good defence in our legal system. You are expected to know the laws, all of them.

This article is the first in a series of articles that I intend to publish for the benefit of all of us,in Malaysia.

CHAPTER 1: CRIMINAL LAW
The Penal Code, is the Act of Parliament that spells out our substantive criminal law. The important provisions in the Penal Code that you should know are Sections 377A, 377B and 377D. Those provisions are reproduced here with some brief explanations :

“ Section 377A. Carnal intercourse against the order of nature
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.Explanation--Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section. “


“Section 377B. Punishment for committing carnal intercourse against the order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.”


The rationale behind the above provisions was originally based on English criminal law which sought to prohibit the act of sodomy.

Points to note:
1. The term "carnal intercourse against the order of nature" between individuals has been interpreted to include anal sex and fellatio, or commonly known as oral sex .
2. The issues of “location” and “age” are not addressed in the provisions. From legal precedent, two consenting adults performing anal or oral sex in private does not
constitute a defence.
3. The maximum sentence for conviction is twenty years' imprisonment with whipping. Imprisonment is mandatory.

4. Some of the Malaysian cases related to these sections are as follows:

Case Name: Kesavan a/l Senderan v Public Prosecutor
Year: 1998
Acts involved: Fellatio, anal
Sentence: 7 years' imprisonment, no whipping because over 50 years of age


Case Name: Public Prosecutor v Dato' Seri Anwar Bin Ibrahim & Anor
Year: 2001
Acts involved: anal
Sentence: Dato' Seri Anwar -9 years' imprisonment
Sukma-six years' imprisonment and 2 strokes on the first charge and 6 years imprisonment and 2 strokes on the second charge. The sentence of imprisonment to run concurrently
(Note:Both sentences were set aside by Federal Court in 2004)


Section 377D of the Penal Code reads:
“Section 377D. Outrages on decency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.”

Section 377D is to criminalise all other non-penetrative sexual acts between men.' Gross Indecency' is a broad term. The term is yet to be discussed in our courts, however it may include mutual masturbation, genital contact, or even lewd behaviour without direct physical contact. Similar to section 377A , performing such acts by two consenting adults in private does not constitute a defence. the maximum sentence for conviction is two years imprisonment . Imprisonment is mandatory
The most recent Malaysian case related to this section is as follows:
Case Name:Sukma Darmawan Sasmitaat Madja v Pendakwa Raya
Year:1999
Acts: anal
Sentence:6 months' imprisonment

Now, take note of this: Homosexual is NOT illegal in Malaysia BUT the homosexual acts, which considered “against the order of nature” by Sections 377A,B and D of our Penal Code, are.