OF the plethora of absurd and disturbing events that have marred the political landscape this year, one of the most significant must surely be the charge of sodomy levelled against politician Datuk Seri Anwar Ibrahim — again.
In a surreal replay of the events of 1998, when then-prime minister Tun Dr Mahathir Mohamad accused him of sodomy, Anwar now finds himself again trying to clear his name of a charge which, under Section 377B of the Penal Code, could result in him being whipped and subjected to up to 20 years in prison.
In 1998, I wrote an article titled Out of the Closet and Into the Courtroom? Some Reflections on Sexuality Rights in Malaysia, as a result of being disturbed by various elements brought up by the Anwar sodomy charge. These issues included the fact that the gay community was being scapegoated in what was clearly — to me anyway — a case of political manipulation; and that very few individuals or non-government organisations (NGOs) were publicly challenging the rampant homophobia voiced by Mahathir and other politicians, enthusiastically taken up by our media.
In the article, I articulated my belief that the Anwar case should not just be seen as just affecting gays. The Penal Code, for example, does not prohibit homosexuality as such, but rather specific acts such as sodomy and fellatio. This means that anyone who engages in these acts, whatever their sexual orientation, can be penalised.
Thus the issue should be placed within the larger context of “sexuality rights”, which addresses not just the persecution of one group (e.g. gays) but any sexuality-based discrimination and persecution, covering a range of groups and orientations — gays, bisexuals, transsexuals, and heterosexuals — who engage in acts such as sodomy and fellatio.
I also called for civil rights groups in Malaysia to start putting sexuality rights on their agenda.
Stronger response against homophobia
A decade on, I find myself again writing an article about sexuality rights in Malaysia. I am glad to say that since 1998, there have been several positive developments in this area.
Then, very few NGOs thought of sexuality-based persecution as a human rights matter. If it came up at all, the issue was seen from a health perspective, linked, for instance, to HIV/AIDS and violence against women.
Today, several NGOs — the All Women’s Action Society (Awam), Women’s Aid Organisation (WAO) and Sisters in Islam (SIS), to name just three — have taken up a stand against sexuality-based discrimination. And there are also several initiatives within the arts community that now promote sexuality rights.
This time around, too, there has been a much stronger response from individuals and organisations to the homophobic discourses and opinions in the media arising from the sodomy charge. Far more Letters to the Editor have appeared — mostly on Malaysiakini.com — challenging homophobic sentiments, compared with the almost blanket silence in 1998 (Suaram and the Malaysian AIDS Council were the only voices of dissent then).
An article attacking homosexuals (Homosexual’s Life of Moral Decadence, 8 July 2008 (don’t you just love the title?) published by national news agency Bernama was roundly refuted by Malaysiakini columnist JJ Ray (Unbridled Ignorance, Courtesy of Bernama, 11 July 2008).
And a Letter to the Editor by Shanon Shah and myself (2 July 2008) condemning the state’s violation of human rights in its use of laws such as the Penal Code to persecute the Lesbian, Gay, Bisexual and Transgender community, which we sent to our friends and networks for support before forwarding to the media, garnered more than 150 signatures in 24 hours. Awam and Pink Triangle also signed the letter.
Such developments are heartening, but we must also be aware of the pressing issues facing sexuality rights advocates. One is the element that has arisen in the Saiful vs Anwar case this year, in which 23-year-old Mohd Saiful Bukhari Azlan swore on the Quran on 15 Aug that he had been sodomised by his former boss, Anwar.
Islamic laws or practices are being brought into a sodomy case initiated under civil law. Bearing in mind that the shariah enactments in many states criminalise sodomy, this raises the disturbing possibility that Muslims charged with sodomy might one day be subjected to both shariah and civil penalties.
(Incidentally, I find it strange that Saiful has not been charged with sodomy himself, since under the Penal Code, it is not only the sodomiser but also the sodomised who can be charged. People can also be charged with sodomy regardless of whether the act was committed in a consensual or non-consensual situation.)
The second issue is that on the whole, those of us committed to sexuality rights know little about the legal landscape in this area. It is a challenge, for example, to find out what laws can be used against citizens to control and regulate their sexual behaviour and practices, how these laws can be used, and so on.
There actually exists a whole host of laws, such as the Minor Offences Act, which can be invoked against those deemed to be behaving inappropriately in public (the crux, of course, is in how you define this) and which has been used against transsexuals; and the shariah laws criminalising acts such as cross-dressing (for men) and homosexual sex (for men and women) in the various states.
And in 2003, we discovered that even a seemingly innocuous law like the Public Parks By-Laws (Federal Territory) can be used by the state in its moral-policing efforts: two college students were prosecuted by DBKL officers who accused them of behaving indecently in a public park (the students claimed they were only holding hands).
It appears, therefore, that an important strategy would be for sexuality rights advocates to start getting some idea of the legal landscape. This would be the first step towards pushing for legal reform to bring Malaysia in line with international standards such as the Universal Declaration of Human Rights, which states that no one should be discriminated against on any grounds.
In such an endeavour, I hope that sexuality rights advocates will not succumb to the temptation of drawing up an agenda that addresses only civil laws and leaves out the shariah element. It would certainly be easier to do that than to face the barrage of hostile attacks from some Muslim religious leaders and authorities, but this would be a grave betrayal of the many Muslims who are subjected to sexuality-based persecution and violation of human rights, and also Muslims who do not believe that Islam requires its adherents to be homophobic or sexist.
As long as one of us is being persecuted, all of us should feel concerned: it is in unity and not division that hope lies. 
(© El Squ / sxc.hu)
Alina Rastam is an activist, poet, trainer and lecturer. She thanks Tan Beng Hui for generously sharing her knowledge and insights on sexuality rights through the many years of friendship and activism they have shared.
