377A of the Penal Code

In light of the Federal Court decision in the case of Sodomy 2.0, I thought that I should take a closer look at this rarely used piece of statute. Apparently, it has only been used seven times in our history and twice on the same bloke. Lucky bastard!

Unfortunately for him, Anwar was found guilty of committing sodomy. The 54 page press summary of the full judgement has already been released to the public. That was awfully efficient of them.

According to various reports, he was charged under S.377A of the Penal Code, which says that:

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

Carnal intercourse against the order of nature is conveniently defined in S.377 of the Penal Code, which says that:

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.

Now, for my 2 sen on this whole issue, from a purely legal perspective devoid of political bias.

Firstly, is the dearth of Law in the summary. If you search through the PDF, you will find reference to merely five precedents. For such a high-profile case, I would have expected the judges to support their judgements with tons of Law – statutes and precedents. That is the kind of high quality judgement that I expected from our nation’s apex court chaired by the CJ, no less.

Unfortunately, we were treated to lots of trivialities, and evidential and scientific minutae instead. There was certainly a lot of commentary and opinion but not much Law. I certainly hope that the full judgement is a lot more padat than the press summary in terms of Law.

Secondly, it is my inderstanding that the Law mandates whipping for S.377A offences. I’m not sure but reports seem to indicate that Anwar will not be whipped. Judges are often given discretion when meting out pecuniary punishments but I’m not sure if they are allowed to simply ignore the clear letter of the Law in this manner.

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

If they are allowed to do so, then what happens to the rest of the Penal Code where whipping is also mandated? If you search through the Penal Code, you will find that whipping is a pretty standard punishment meted out for all sorts of crimes. Does this mean that a shall means something other than what I learned in Law school?

Thirdly, I am particularly concerned with the principle that corroborative evidence is not necessary for sexual crimes. While this may be settled Law for rape, it is far from settled for sodomy particularly in Malaysia since we’ve only had so few charged in the past.

Proving rape is difficult enough as it is even with physical evidence. It often boils down to a he-said-she-said case as the critical component that separates rape from regular sex is the element of consent, which must be adduced through evidence. Otherwise, any woman can cry rape and not have to prove it in any way, which is a dangerous precedent.

However, the crime of sodomy is a strict-liability crime and is a different creature from rape simply because the act of sodomy itself is a crime, regardless of consent. Therefore, I would say that the need for corroborative evidence is even more crucial for sodomy. We cannot allow someone to simply accuse another of sodomy without any sort of evidence.

According to the summary PDF:

There was therefore no reason for him to level a false accusation against the appellant as the stigma will remain for his lifetime.

Personally, I can think of a million reasons for someone to level a false accusation against Anwar. That man has painted a bright red target on his back. Therefore, it is definitely reasonable to expect Anwar to have a lot of enemies. Hence, I think that it would be necessary to have solid and unimpeachable evidence that he committed the act of sodomy.

But I guess this principle was not considered much since there have only been so few sodomy charges in the past. Maybe, one day in the future, another sodomy case will reverse this precedent by requiring evidence of sodomy.

Reg v Willans

I was asked to read the case Regina v Willans and to figure out certain issues on the introduction of English Law to Malaysia – how it was brought in and what effects it had. This case is only a landmark for Malaysian and Singaporean Law as it highlighted the situation before and after the Charter of Justice 1807 was brought into Malaysia.

one frequently sees conversing together five people, of whom no two obey the same laws – R v Willans

Material Facts and Issues.

An agricultural labourer, Chivatean, absented himself from his service while under contract. Chivatean was sentenced to two months’ hard labour previously, for a similar offence and that upon completing his sentenced, he refused to return back to complete his contract.

As a result, he was apprehended again and brought before the magistrate again for the second time and the magistrate refused to adjudicate as he decided that he could not punish Chivatean again under 4 Geo IV C.34 for breaching the same contract a second time.

The issue is whether or not the magistrate’s refusal to adjudicate on this was well founded in Law (particularly what Law).

Why no Law could be considered lex loci in Penang when it was ceeded.

As Penang was ceeded by the Sultan of Kedah to a quasi-sovereign entity – EIC – the question of what law was lex loci at the time only applies to either British Law or Kedah Law. Based on the general rule of law, if an existing land was ceeded, the existing Law should continue for such time until changed by the new government; and if the land was empty, the Law of the occupiers should be used.

Unfortunately, Penang was neither a colony in the ordinary sense of the word as it was ceeded to the EIC by the Sultan of Kedah, nor was it uninhabited as there were several Malay families (most likely nomadic fishermen) encamped upon it when first occupied by the British.

While the British who came with Captain Francis Light were bound by British Law, the nature of their temporary occupancy on the island hardly suggests that the same Law applied to the rest of the inhabitants of the island. So, British Law was only considered the Law applied to the garrison and their people.

While the bulk of the early settlers were Chinese, Malays and Indians, none could establish their respective laws in a British possession and the few early English settlers were not there to establish a permanent settlement but were there in a temporary nature (possibly as traders or workmen).

While Kedah was the prior owner of the land, it is also not possible to assert that Kedah Law continued to be enforced on the island due to the lack of any legal institutions nor authority on the island at the time it was ceeded. Furthermore, it is difficult to hold a Christian government to adopt Islamic Law (that required Muslim Judges and witnesses) as the lex loci.

Therefore, neither Kedah Law, British Law, nor other Laws of the early settlers were considered lex loci at the time.

What Law applied in Penang in the first 20-odd years of being ceeded.

As a result of this situation, no clear law applied to the island during the early years and the Commandant of the garrison was left with the task of maintaining order amongst the early settlers.

Crime was punished by a kind of martial law that the GG considered appropriate to the offence. In personal matters, as may systems of law were in force as there were nationalities on the island tempered by the sense of natural justice of whichever magistrate constituted the Court of Appeal at the time.

Therefore, English Law was not even recognised as the law of its English inhabitants as reflected clearly in the way the place was first run.

What factual evidence refuted any contention that English Law ever applied in Penang at the time.

Captain Light was directed in 1788 to preserved good order in the settlement, not by punishing those who offended against it according to English or other Law but by confinement or other common punishment. This was largely due to the temporary nature of their settlement. For the non-British subjects, he generally sent them to Calcutta for trial for serious crimes.

However, the jurisdiction of the Calcutta courts did not extend to the island and in 1793 the AG there could not adjudicate over any serious criminal matters sent there from the island. This gap in legal jurisdiction allowed criminals to roam free on the island as late as 1805.

Even in case of Civil Laws, the evidence shows that slaves were openly bought and sold and taxes were imposed by sole authority of the local government. This opposed two principles of English Law – that makes a slave free within the jurisdiction of British Law, and that protects subjects from taxation without representation.

While there were Courts and Judges on the island before the Charter, the justice which they administered within their jurisdiction was not in accordance with the rules of English Law but merely according to their own notions of what was just.

What Law did the CoJ 1807 introduce into Penang.

It must be presumed that the CoJ 1807 was granted with the knowledge of the sad state of affairs on the island at the time.

Although the CoJ did not explicitly introduce English Law into Penang, it can be argued that the wording of the CoJ 1807 directed that it should be administered on the island and therefore, it introduced English Law into the island. The only issue then is to what extent did it introduce English Law.

What extent did the Law introduced by CoJ 1807 apply to Penang.

The extent to which English Law applied is then a matter of construction.

With regards to Criminal Law, the language of the CoJ 1807 is explicit that it requires the Courts to administer Criminal justice in such or the like manner and form or as nearly as the conditions and circumstances of the place and people will allow, as in England.

Based on this, the J concluded that the same must apply to Civil Law too. However, the wording of the CoJ 1807 directs the court to administer justice and right, without expressly stating what body of law is to be applied.

As the CoJ was issued from a competent authority in England, therefore, due to the lack of any other direction, it is presumed that English Law must apply.

What criteria determined whether 4 Geo IV C.34 was applicable in Penang.

The mischief that it was designed to prevent was in no way peculiar to any specific geographic locale. There was also an acute shortage of labour that made it difficult to replace any defaulting labourer.

Furthermore, the machinery by which the the mischief is remedied is in full force and operation in Penang as a result of all the Charters – both Justices of the Peace and a House of Correction. As both the mischief and the means to redress it exist both in England as in Penang, therefore the 4 Geo IV as law on the island must be enforced.

The principle is that the Act is applicable to the situation in Penang and the mechanism to administer it is present. Therefore, the Act must be enforced.

Whether Magistrate Willan’s refusal to adjudicate was founded in Law.

From the judgement, Magistrate Willan’s refusal to adjudicate is founded in Law under that of double jeopardy. However, it was not sufficiently well founded as he failed to account for the Mischief Rule – that is to ensure that the law corrects the mischief that it is supposed to correct.

By refusing to adjudicate, the magistrate would allow the wrong-doer to take advantage of his own wrong-doing, which is not what the law was intended to do. Therefore, the magistrate should have heard and adjudicated on the case.

Race Relations Act

Disclaimer: This entry is purely speculative as the law isn’t available for public scrutiny yet.

I do not want to speculate over law that is not yet publicly available in writing. However, it does not bode well for our Race Relations Bill if, according to TheStar article, it is designed as one of the two laws to replace the Internal Security Act.

I applaud the minister for saying that, “Malaysia’s Race Relations Bill would be similar to the British law, including in barring discrimination on the grounds of race, colour, nationality and ethnicity in employment, provision of goods and services, education and public functions.” However, parts of the law would be void in so many ways due to Article 153 of our Consti, which enshrines racial discrimination.

  1. It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
  2. Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.

What I am unable to fathom though, is how the law would be able to replace the ISA. I am afraid that the government is being short-sighted again, and drafting a narrowly focused law that is designed to only tackle one situation or scenario only – that of people inciting racial tensions.

I’m beginning to appreciate how law can be constructive and destructive. My hope is that the law will be designed to promote inter-racial relations but from the way things have been going in Malaysia, it does not seem likely to happen. The law will most likely be used against people who incite racial tensions instead of promoting further integration.

You see, the law could be made to encourage the races to come together such as providing tax incentives for inter-racial marriages, further education opportunities for children of mixed parentage, housing discounts for mixed families, etc. However, I highly doubt that this is ever going to see the light of day.

I’m guessing that the law will seek to regulate behaviour. I wouldn’t be surprised to find that there will now be a list of banned words that are considered derogatory and would constitute a race crime if uttered. I wouldn’t even be surprised to find religious elements creeping into the law as we have troubles separating the two in Malaysia.

I’d like to be hopeful but I’m too jaded to be so.