Just when most Malaysians could breathe a sigh of relief that finally people who have the right knowledge of the law is making the headlines again following the decision of the Court of Appeal in the UKM 4 case, our brilliant and entertaining ministers in the PM Department had to prove us wrong all over again. In the latest instalment of “How I Met My Silly Politician”, the two ministers were commenting on the issue of homosexuality and how it was considered to be unconstitutional by both men who had very interesting and “creative” arguments in which they hope (I assume) will mislead the public into thinking that being a gay or lesbian is unconstitutional. That in the event you are torn in between both sexes, you SHALL flip a coin and choose one sex because the constitution said so. I’m sorry Mr. and Mr. Minister, but I’ll have to say that both of the arguments are flawed.
The first minister, who is in charge of Islamic affairs and Jakim stated that being gay is unconstitutional by virtue of section 377(a), (b), (c) and (d) of the Penal Code which relates to carnal intercourse against the order of nature. “Whoa!”, “wa lau eh” and “fuyoh” would probably be a response from any lay men. However, anyone who has a legal background would not be perplexed upon hearing such silly argument because in order to determine if something is unconstitutional, you’ll have to rely upon the supreme law of the land, the Federal Constitution and not on the basis of an ordinary law such as the Penal Code. If we were to follow in the Minister’s argument based on the Penal Code to determine the constitutionality of being a homosexual, it would mean that anyone has the right to be gay so long as he/she does not commit any carnal intercourse as provided in section 377. Besides, it also means that a he can grab another he’s testicles and make out affectionately in public with each other as long as one of them does not stick his penis into the other’s anus. According to the Minister, such a relationship is permitted under the law. Being a disciple of the law, I’m afraid I can’t follow his argument.
True to the song “Two Is Better Than One” by Taylor Swift, the de facto law Minister came to the rescue in order to divert the attention from the donkey (sorry but I can’t help to say it) above. With the spot light upon him, the Minister raised Article 3(1) of the Federal Constitution which provides that “Islam is the religion of the Federation but other religions may be practiced…..” and claimed that an act which is against Islam is deemed to be unconstitutional. With not all due respect to the Minister, I would like to humbly reject his argument based on two grounds. Firstly, that Malaysia is a secular state and thus, the constitutionality of any law should be measured against the Federal Constitution and not any Islamic law. Subsequent to Independence, Tunku Abdul Rahman made an announcement to the Parliament that “I would like to make it clear that this country is not an Islamic State as it is generally understood, we merely provided that Islam shall be the official religion of the State.” Alternatively, in the landmark case of Che Omar b Che Soh v PP, Salleh Abas L.P. held that Malaysia is a secular state. This goes to show that the Federal Constitution is the supreme law of the land instead of Islam. Secondly, an act should not be deemed to be unconstitutional by virtue of it contradicting with the religion of Islam. There are many acts which are against the values of Islam such as gambling or consumption of alcohol or pork but these acts are not regarded as unconstitutional. Laws which govern the Muslims should never be imposed upon the non-Muslim.
Nothing in the constitution denies anyone of his or her identity based solely on their sexuality. Notwithstanding, what is actually provided in the constitution, more specifically in Article 5, is the right to life and this ‘life’ should not only be construed in the narrow sense but also the right to a ‘quality of life’ which is free from any discrimination based on one’s sexuality. What would be unconstitutional in my view, is when we deny this minority group to be who they are and discriminate or marginalise them. In addition, it would also be "unconstitutional" for a politician to mislead the public on the law and to issue a sweeping statement without ascertaining the validity of his statement. Now that you know the truth and nothing but the truth which includes knowing the fact that the tax-payers’ money is spent on such baboons, I’d like to table a motion (not to pass motion but) to have Lord Bobo of LoyarBurok to take over their places. Besides, he’d only cost us bananas.
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