I would like to discuss some points raised by JJ Ray in the article on the stance adopted by various authorities with regards to the draft resolution on homosexuality that is about to be

The Bar Council chairperson noted that Section 377 of the Penal Code proscribes penile penetration of the mouth or anus (sexual behaviour typically associated, but not necessarily limited, to homosexual men). Firstly, it should be pointed out that from a purely physical perspective, this section does not criminalise lesbian sexual behaviour (which obviously does not involve any form of penile penetration). Thus, it is technically incorrect to claim that all homosexual behaviour is criminal under the Penal Code.

In reality, the section in question is an antiquated relic of our colonial past that is coloured by Victorian sexual morality and prudishness. It was not created by the Parliament of our country and it does not reflect the more nuance viewpoint of sexuality that is found in many Asian societies.

For example, there is ample historical evidence (through literary poems and records) attesting to the varying levels of tolerance for homosexual behaviour in China. Although it is admittedly a cultural taboo in many Asian societies today, countries such as Thailand and China do not have laws criminalising homosexual behaviour. In fact, Taiwan has recently dabbled with the possibility of legislating gay marriage while King Norodom Sihanouk of Cambodia has gone on record in expressing his support for gay civil rights.

From a religious viewpoint, Islam is the only major world religion in which there is an overwhelming majority agreement amongst scholars on the illegality of homosexual behaviour. Within other major world religions (for example, Christianity and Buddhism), there is a wide spectrum of opinions on the issue ranging from complete acceptance and celebration to explicit social rejection.

The law minister and Bar Council chairman appear to be quite confused over the nature of the United Nations draft resolution, which only seeks to remove the illegal status of homosexual behaviour as opposed to legitimising it (for example, through some legal recognition of gay partnerships). There is a clear distinction between these two stances, which both these legal authorities have either failed to notice or have willingly ignored.

Furthermore, the sodomy law has primarily been utilised in the courts in the prosecution of criminal sexual behaviour such as rapes as well as in high-profile political cases. To the best of my knowledge, there has never been a case of two consenting adults in a committed relationship being prosecuted under this section before.

Given this situation and the impending draft resolution in the United Nations, there is no clear motivation or logic as to why the section needs to be retained in our secular penal code. Existing legal proscriptions against it can still be maintained under Syariah jurisdiction to ensure that the religious sensibilities of the Muslim community are not offended. In this sense, homosexual behaviour should be treated like the issue of khalwat , i.e. permissible only for non-Muslims.

However, I must question JJ Ray's assertion that there is zero tolerance of the gay and lesbian community in Malaysia. Although there is certainly no public recognition of the existence of such a community, there is however a very thriving night scene for gays and lesbians in big cities such as KL and Penang, all of which occurs with the full knowledge of the police.

It is very much an unofficial 'don't ask, don't tell' sentiment; as long as the gay community does not attempt to project an extremely public image, the authorities are content to turn a blind eye. In fact, it is quite likely that a gay person would face a greater risk of being physically assaulted in some parts of the Western world in comparison to KL or Singapore.

Last but not least, I am in full agreement with Gay Malaysian Doctor with regards to his criticism of Suhakam. It is an outright travesty of justice when Suhakam cautions against eschewing human rights when punishing convicted rapists, but has no compunction on defending outdated laws that potentially threaten two men in a loving, committed relationship with a minimum jail sentence of five years.

If this is an indication of the moral sensibilities that Suhakam operates from, it does not bode well at all for the future of other minorities in Malaysia whose rights Suhakam was purportedly created to protect. As a great defender of civil rights once said, an injustice perpetuated anywhere is a threat to justice everywhere.