The stance of two Umno ministers that homosexuality is ‘unconstitutional’, based on their interpretation of Article 3(1) of the federal constitution, has been challenged by law professor Abdul Aziz Bari.

Making clear that he was not condoning homosexuality, Aziz said the provision could be interpreted in many ways. One of these is that Islam is a national ideology or national faith.

NONE “However, that does not mean that Islamic laws and values can or should be imposed on everybody.

“Non-Muslims in particular are free to practise their religion, something that is expressly stated in Article 3(1) itself, after declaring the position of Islam,” he said.

“In fact the statement by the two ministers may go against this proviso. Minister in the Prime Minister's Department Jamil Khir Baharom mentioned provisions of the Penal Code, but that is an ordinary law. It is not the constitution. The act may be prosecuted, but that does not mean it is unconstitutional.”

Yesterday, Jamil Khir and de facto Law Minister Mohd Nazri Abdul Aziz had agreed with one another that ‘homosexuality is unconstitutional’.

Aziz countered that the constitution is not penal law but the basic law that defines the powers of the state, as well as the rights of ordinary people.

“Any law that is perceived as not in line with the constitution (which serves as the benchmark) may be challenged,” he said.

Given that two ministers have said their piece, Aziz proposed that the cabinet should clear the air.

“One can assume that, since ministers are bound by the principle of collective responsibility, what they have said represents the official stand of the government. But still it is advisable for the cabinet to issue a statement on the matter.”

‘Take matter to court’

Aziz also said that if the gay community and its sympathisers were concerned about such statements, they could apply for judicial review and a declaration.

palace of justice istana kehakiman “They may proceed on some of the provisions in the constitution, like Article 5 on the right to life. The court here has ruled that life is not just purely (about) life but (includes) quality of life,” he explained.

 

"The two ministers have obviously failed to understand the constitutional scheme, leading to the failure on their part to apply the constitutional provision correctly.

 

"The two seem to think that Article 3(1) means the application of Islamic values and systems even to non-Muslims, which is not the case,” Aziz said.

“Such an erroneous impression is not only against the constitution but also against Islam, which guarantees religious freedom and abhors compulsion in religion.”

Acts associated with homosexuality are barred in Malaysia, with ‘unnatural sex’ being punishable under Section 377 of the Penal Code.