Sodomy laws: A British import

Portrait of Henry VIII
(public domain, Wiki Commons)

TO understand the origins of Malaysia’s sodomy laws, a short trip down British history is required.

Henry VIII (1491-1547), the most handsome man in all of Christendom, tried for some years to annul his marriage to Catherine of Aragon to marry Anne Boleyn. A spectacular and violent struggle between the English monarchy and the Roman Catholic Church thus ensued, culminating in Henry VIII being excommunicated by the Pope in 1530. In 1531, Henry VIII became the supreme head of the Church of England. And in 1533, he married Anne Boleyn — never mind that he would have her beheaded three years later.

1533 was an interesting year, though, because it was then also that Henry saw to the passing of England’s Buggery Act, amid all the political and religious intrigue. Up to 1533, there were no parliamentary laws outlawing homosexuality, except for what was contained in a few medieval commentaries on English common law, such as this one: “Those who have dealings with Jews or Jewesses, those who commit bestiality, and sodomists, are to be buried alive after legal proof that they were taken in the act, and public conviction.”

Under Henry VIII, what was once the domain of ecclesiastical punishment became a parliamentary matter. Sodomy, or buggery as it was referred to then, became a capital offence. In fact, Walter Hungerford, 1st Baron Hungerford of Heytesbury, became the first person to be executed under the law in 1540, although it is interesting to note that Sir Walter was in fact implicated in an insurrection against the king.

Thus began in England, more than five centuries ago, what Malaysians would only become familiar with in 1998 — the use of legislation outlawing same-sex relations as a tool of political persecution. The irony is that Henry VIII’s Buggery Act was supposed to be temporary legislation, but was given permanent force by Elizabeth I’s second Parliament in 1563.

Alex Au (right), onstage for Seksualiti Merdeka, 2008 (pic courtesy of TiltedWorld.org)

Singaporean lesbian, gay, bisexual and transsexual (LGBT) rights activist Alex Au points out that between 1806 and 1900, 8,921 men were indicted, 404 were sentenced to death, and 56 were executed under this law, the last executions happening in 1835. Au shared this during the session “Legalising nature: Hong Kong, India and Singapore”, during the second annual Seksualiti Merdeka festival in Kuala Lumpur, held from 12 to 16 Aug 2009.

In the colonies

In the 1850s, the British East India Company introduced a rifle which offended Hindus and Muslims in the Bengal Army, based on rumours that its cartridges were greased with pig and cow fat. In February 1857, the 19th (Bengal Native) Infantry boycotted the use of the cartridges.

They were quickly disbanded, but sparked off a chain reaction which resulted in what is now known as the Indian Mutiny. Thousands were slaughtered, both on the Indian and British side, and in the ensuing pandemonium, the British Parliament abolished the East India Company.

India then became part of the British Crown. The colonial power subsequently introduced the Indian Penal Code in 1860, which included Section 377 — the law which made “carnal intercourse against the order of nature” an offence. The law was then exported to the rest of the British colonial world. In Hong Kong it was introduced as Section 118 of the colony’s Crimes Ordinance, while in Malaya and Singapore it was introduced as Section 377 of the Penal Code.

The wording of Malaysia’s Section 377A is: “Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.”

However, Section 377D is much more catch-all: “Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.”

The British, and the subsequently independent Malaysian government, left no stone unturned when it came to sexual matters.

Islam’s role

In Malaysia, Section 377 has been staring the rakyat in the face ever since former Deputy Prime Minister Datuk Seri Anwar Ibrahim was sacked in 1998 over sodomy and corruption allegations. The debate then mutated very quickly over the years. In 2003, effeminate — and by extension gay and bisexual — men were targeted by the government-controlled Malay language press and the state. In 2008, it was tomboys — and by extension, lesbian women — who were targeted in a controversial fatwa. 

Lot leaving Sodom; woodcut from the Nuremberg Chronicle (public domain / Wiki commons)  

It is almost a given now that anti-LGBT legislation in Malaysia springs forth from Islam’s supposedly unambiguous stand on homosexuality. Muslims are bombarded with stories of what happened to the people of prophet Lot, the Quranic equivalent to the Sodom and Gomorrah account in the Old Testament.

True enough, Part IV of the Syariah Criminal Offences Act (Federal Territories) 1997 also outlaws sodomy and lesbianism through Sections 25 and 26. But the codified syariah laws in Malaysia are colonial and post-colonial constructions themselves. Muslim jurists from the classical era of Islam probably had very different understandings of same-sex affections and identities.

And as both former Prime Minister Tun Dr Mahathir Mohamad and Henry VIII have demonstrated — the state does not just use morality laws to enforce “good morals”. Furthermore, whether we like it or not, the so-called anti-gay laws in this country are actually a colonial import. They are an imposition of a colonial power’s values, Christian at that, over the world it forcibly dominated for more than a century.

Challenging the law

But these colonial relics are slowly being challenged. In Hong Kong, the courts have struck down most of the homophobic provisions of Section 118. In July 2009, the Delhi High Court read down Section 377 of the Indian Penal Code in a landmark decision. Singapore has also seen significant public debate over whether to repeal the island state’s Section 377A.

The amazing thing is not that these, like Malaysia, were former British colonies. The amazing thing is that none of these countries had anywhere near a political crisis where a deputy head of government was sacked for allegedly being non-heterosexual. And they still managed to move beyond the laws they inherited from their former colonial masters.

Malaysians have had 11 years to grapple with the fact that our second highest ranking government leader was sacked and incarcerated because he might have been gay or bisexual. That same man, who is today Opposition Leader, faces yet another charge of sodomy in what is widely seen as continuing political persecution.

At the same time, the debate in this country on whether sodomy laws are justified does not even come near the debates in India, Singapore and Hong Kong. Will it ever? Or will we continue to see the persecution of individuals in Malaysia for acts which were criminalised by our colonialists but which have been decriminalised elsewhere?

See also:  
Rethinking Malaysia’s sodomy laws

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