Throughout the years of political turmoil in this country, Section 377 of the Penal Code, in particular Section 377B, has been used several times most notably in the case of Datuk Seri Anwar Ibrahim. This has led to the accusation that this law exists mainly as an instrument of political persecution. It is basically a relic we inherited from the British relic that goes back all the way to King Henry VIII in 1533 who prohibited ’the detestable and abominable offence’ of buggery or anal intercourse with mankind or beasts. How such an archaic law persisted for so long – despite some modifications from the initial punishment by death – has such an impact on our modern society is simply stupefying.
Recently, the Supreme Court of India delivered its judgment in Navtej Singh Johar & Ors v The Union of India (hereafter Navtej) wherein it declared that much of section 377 of the Indian Penal Code which criminalised carnal intercourse between humans as being unconstitutional. Then on 10 September 2018, a similar challenge was launched in Singapore based on the judgment in Navtej. Needless to say, the Indian Court’s decision has caused shockwaves throughout similar legal systems which still carry similar archaic provisions.
The Indian Supreme Court’s five-man constitutional bench handed down its unanimous decision on 6th of September 2018. There were separate judgments. Dipak Misra, Chief Justice of India (‘CJI’) delivered the majority judgment with Khanwilkar J. Nariman, Chandrachud, Malhotra JJ delivered separate concurring judgments. The collective judgment of the Indian Supreme Court spans nearly 500 pages.
We will focus on is the ruling in respect of the right to privacy.
In respect of privacy, we think the following portions of the majority judgment of the Supreme Court are instructive:
“160. At home, the view as to the right to privacy underwent a sea-change when a nine-Judge Bench of this Court in Puttaswamy (supra) elevated the right to privacy to the stature of fundamental right under Article 21 of the Constitution. One of us, Chandrachud, J, speaking for the majority, regarded the judgment in Suresh Koushal as a discordant note and opined that the reasons stated therein cannot be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. Further, he observed that the reasoning in Suresh Koushal‘s decision to the effect that ― a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders" is not a sustainable basis to deny the right to privacy.
161. It was further observed that the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular, and the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.
162. The test of popular acceptance, in view of the majority opinion, was not at all a valid basis to disregard rights which have been conferred with the sanctity of constitutional protection. The Court noted that the discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the 'mainstream', but in a democratic Constitution founded on the Rule of Law, it does not mean that their rights are any less sacred than those conferred on other citizens.
163. As far as the aspect of sexual orientation is concerned, the Court opined that it is an essential attribute of privacy and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. The Court was of the view that equality demands that the sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution…
228. In Puttaswamy (supra), the right to privacy has been declared to be a fundamental right by this Court as being a facet of life and personal liberty protected under Article 21 of the Constitution.
229. In view of the above authorities, we have no hesitation to say that Section 377 Indian Penal Code (IPC), in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small. As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.
230. The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty. When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.”
The provision challenged in Navtej was section 377 of the Indian Penal Code. It stipulates as follows:
Whoever voluntarily has or animal, shall be punished with imprisonment carnal intercourse against the order of nature with any man, woman for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
In Malaysia, unnatural sexual acts have been criminalised by virtue of sections 377 to 377E of our Penal Code.
Section 377 criminalises buggery with animals i.e.sexual intercourse with animals (bestiality). The Indian equivalent was upheld as constitutional in Navtej.
Sections 377A defines the phrase ‘carnal intercourse against the order of nature’ as ‘sexual connection with another person by the introduction of the penis into the anus or mouth of the other person’. Section 377B criminalises voluntary carnal intercourse with another while section 377C criminalises involuntary carnal intercourse.
A plain reading of section 377B suggests that it applies against males only either heterosexual or homosexual. Be that as it may, we argue that the said section is biased against homosexual males. This is because it operates without the element of consent. To put it another way, consensual sex between adults should not be a crime. By contrast, non-consensual sexual activities such as rape and molest should be criminalised due to their harmfulness and wrongfulness.
It was on this basis that the Human Rights Committee recommended to Australia to repeal Tasmania’s equivalent of the law when Australia’s conformity with its international human rights law obligations was called into question. This discriminatory feature of the provision (even though it applies to homosexuals and heterosexual males alike) was also affirmed by the majority in Navtej.
To quote the Human Rights Committee in Toonenin respect of the Tasmanian example, it opined as follows:
“7.6 As to the discriminatory effect of Sections 122 and 123 of the Tasmanian Criminal Code, the author reaffirms that the combined effect of the provisions is discriminatory because together they outlaw all forms of intimacy between men. Despite its apparent neutrality, Section 122 is said to be by itself discriminatory. In spite of the gender neutrality of Tasmanian laws against "unnatural sexual intercourse", this provision, like similar and now repealed laws in different Australian states, has been enforced far more often against men engaged in homosexual activity than against men or women who are heterosexually active. At the same time, the provision criminalizes an activity practised more often by men sexually active with other men than by men or women who are heterosexually active. The author contends that in its General Comment on article 26 and in some of its views, the Human Rights Committee itself has accepted the notion of “indirect discrimination”.”
Section 377C criminalises non-consensual carnal intercourse. We believe this provision is necessary because the rationale for its existence is akin to the rationale for the prohibition against rape. At present, the law only recognises non-consensual acts with women to constitute rape. Perhaps, to note in passing, it is high time our country reviews the law on rape.
Notably, there is no section directly criminalising female homosexual acts. The closest to this is section 377D which criminalises private and public acts of indecency. We do not mean to suggest that female homosexuality should be criminalised but merely suggest that this could be just one of those provisions relied upon against lesbians.
The remaining provisions on unnatural offences are sections 377CA and 377E. Section 377CA criminalises non-consensual sexual acts which involve the insertion of an object (other than the penis) into the vagina or anus (this arguably also criminalises lesbianism). Section 377E criminalises the incitement of children to engage in acts of gross indecency.
This was the primary question considered by the Supreme Court of India in Navtej. Professor Tommy Koh in an article published online, in the same line of thinking in Navtej, argues that the Singaporean equivalent of the provision is unconstitutional.
In short, these provisions relating to carnal intercourse were designed by the colonials at a time where sexual intercourse was considered an act solely for pro-creation. Homosexual activity was in this sense considered ‘unnatural’. There were also religious connotations to it. It was considered sinful and hence criminalised on religious grounds.
We think the above view no longer holds water. Our courts are not judges of morality. If at all morality is a factor, it must be (according to the majority in Navtej) be grounded on ‘constitutional morality’. The phrase ‘constitutional morality’ is best explained in the words of the Indian Supreme Court itself as follows:
“111. The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State…
119. The duty of the constitutional courts is to adjudge the validity of law on well-established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.
120. We may hasten to add here that in the context of the issue at hand, when a penal provision is challenged as being violative of the fundamental rights of a section of the society, notwithstanding the fact whether the said section of the society is a minority or a majority, the magna cum laude and creditable principle of constitutional morality, in a constitutional democracy like ours where the rule of law prevails, must not be allowed to be trampled by obscure notions of social morality which have no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number.”
Simply put, the Courts are not concerned with social morality. An act may be a sin, but if the said act is criminalised against the grain of constitutionality, then it is the duty of the Courts to intervene and set the law straight. Therefore, following the Indian example, our Penal Code provisions in section 377B is arguably unconstitutional.
It might be argued that the Malaysian position is radically different from India’s or even Singapore’s. That may be true. The individual States are empowered under the Federal Constitution to create offences against the precepts of Islam. But we argue that any laws made which criminalise consensual homosexual activity are unconstitutional because they violate, amongst others, the fundamental liberty of privacy. Even if, or especially so if they were enacted on grounds of religion.
Based on the above, we argue that the secular nature of the Federal Constitution overrides the allowance for laws premised on religion. This is explicit in Articles 3(1) and 3(4) of the Constitution. As brilliantly summarised by Hishamudin JCA as follows in Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors:
“ Islam is declared by art 3(1) of the Federal Constitution to be the religion of the Federation.
Religion of the Federation
3(1) Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.
But what is more important for the purpose of our judgment is the fact that art 3(4) qualifies the status of Islam in following terms:
… (4) Nothing in this Article derogates from any other provision of this Constitution.
 What art 3(4) means is that art 3(1) is subject to, among others, the fundamental liberties provisions as enshrined in Part II of the Federal Constitution.”
The above approach was in fact cemented into our jurisprudence in the eternal words of Salleh Abas LP in Che Omar Che Soh v Public Prosecutor:
“[W]e have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law. Perhaps that argument should be addressed at other forums or at seminars and, perhaps, to politicians and Parliament. Until the law and the system is changed, we have no choice but to proceed as we are doing today.”
We understand that while many have argued that as a country that puts Islam as a religion of the Federation, we should then uphold the belief that homosexuality goes against God’s creation, and is thus unnatural and immoral. But the issue here is that, it is imperative upon the state to protect its citizens and their freedom, regardless of their belief. Especially when the Constitution guarantees the rights to personal liberties. Not only does section 377B stand against the Constitution, but also against the Universal Declaration of Human Rights (UDHR). The first article of UDHR reads: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Why should homosexuals then be treated as lesser human beings, denied of their dignity and rights?
We say that that the repeal of section 377B would simply confer greater freedom for the minority segment in our society. It is freedom to love, a freedom which is enjoyed by many others. It confers upon them the rights and the dignity as part of the human community, to do what they want in their private lives. For it is not the responsibility of the state to dictate what its citizens do in their private lives.
And in this respect, our judges too have to be insightful and consider the rights of individuals as a whole. They ought not to decide cases relating to fundamental liberties premised on what the society might think of them. The time to act is now. In the words of the majority in Navtej:
“[T]he constitutional courts have to embody in their approach a telescopic vision wherein they inculcate the ability to be futuristic and do not procrastinate till the day when the number of citizens whose fundamental rights are affected and violated grow in figures.”
Ultimately, our Federal Constitution is supreme and this reality cannot be displaced by persons claiming to hold the moral torch.
Saif Bhatti is an Advocate & Solicitor of the High Court of Malaya and a Fellow at the Islamic Renaissance Front. Khairul Anwar Hairudin is an Advocate & Solicitor of the High Court of Malaya. The views expressed in this article are entirely the authors’ own.
Toonen v Australia(1994) UN Doc CCPR/C/50/D/488/1992, HRC Communication No 488/1992.
See the majority judgment of Dipak Misra CJI (Khanwilkar J concurring) at paragraphs 237-241.
Toonen v Australia(1994) UN Doc CCPR/C/50/D/488/1992, HRC Communication No 488/1992, at paragraph 7.6.
Section 377CA was amended for the purpose to criminalise the insertion of any object or part of the body other than the penis into the victim’s private parts. It was done as a result of the infamous finger rape case where a man penetrated a girl using his finger. He was charged with rape under section 376 of the Penal Code. The Court of Appeal acquitted him on the grounds that what he did was not rape. Read more at https://www.thestar.com.my/news/nation/2017/04/05/sexual-assault-laws-to-be-made-clear-penal-code-to-be-amended-to-avoid-ambiguity-and-injustice-due-t/#Uqedm53BwPX97qCQ.99.
Tommy Koh, ‘Section 377A: Science, religion and the law’ The Straits Times, 25 September 2018 < https://www.straitstimes.com/opinion/section-377a-science-religion-and-the-law>.
See, Christopher J. LaneThe Ruling Passion: British Colonial Allegory and the Paradox of Homosexual Desire (Duke University Press, Durham and London,1995)
See the majority judgment of Dipak Misra CJI (Khanwilkar J concurring) at paragraphs 111237-241.
See the Constitution of Malaysia, List II (State List), item 1.
 3 MLJ 513.
 2 MLJ 55, at page 57.
See the majority judgment of Dipak Misra CJI (Khanwilkar J concurring) at paragraph 117.