A legal expert says the federal constitution doesn't specifically label homosexuality as an offence or seek to ban it.
Yesterday Minister in the Prime Minister’s Department, Jamil Khir Baharom, declared homosexuality as unconstitutional and cited sections 377 (a), (b), (c) and (d) of the Penal Code which refer to carnal intercourse against the order of nature.
Jamil’s statement was subsequently backed by fellow Cabinet Minister, Nazri Aziz, who referred to Article 3 of the Federal Constitution which states that Islam is the religion of the federation.
Nazri explained that if certain acts fall within the constitution but go against Islam they are deemed inapplicable in Malaysia.
But Alex De Silva from the law firm Bodipalar Ponnudurai De Silva (BPD), told FMT that there is no provision within the federal constitution that specifically states that homosexuality is an offence or that it should be banned.
“Article 3 states that Islam is the religion of the federation but other religions may be practised in peace and harmony in any part of the federation,” he recited.
“It enshrines the special position of Islam in Malaysia. It’s not meant to be interpreted as such that any practice that goes against it is unconstitutional.”
“As for the Penal Code, section 377 makes it an offence for two persons to engage in carnal intercourse,” he said. “The two persons could be of the same sex or even of the opposite sex. It does not specify homosexuals.”
“In any event, being guilty of an offence under the Penal Code does not make the offender “unconstitutional”. It merely means that the offenders may be guilty of an offence and is liable to be charged and if found guilty to be sentenced.”
De Silva added that Article 8 of the constitution that pertains to equality must also be taken into consideration.
Article 8 (2) states that there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender.
“Yes it doesn’t mention sexual preference,” De Silva acknowledged. “At the time when the constitution was drafted probably this was not an issue.”
“But the issue at hand is arguable. Homosexuals may perhaps rely on Article 8 to argue that the equality guaranteed would extend to not to discriminate against them as a class premised on the ground that all are citizens are equal.”
Gay rights made headlines earlier this month after police banned the annual Seksualiti Merdeka festival which has championed the freedom of sexual orientation and gender identity since 2008.