Lawyer: Homosexuality not unconstitutional

By Stephanie Sta Maria, FMT

PETALING JAYA: A senior lawyer has disputed a government decree that homosexuality is unconstitutional and instead said that the federal constitution in fact leaves the matter open to debate.

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.”

De Silva pointed out that if that was the case then the consumption of pork and alcohol would also be unconstitutional since both go against Islam.

“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.”