A Kuala Lumpur City Hall (DBKL) worker convicted on 22 sodomy charges wants the Court of Appeal here to declare as unconstitutional the provision criminalising that offence, contending that it is biased against the male gender.

The submission on the novel issue was made by Fahri Azzat, counsel for Abdul Rahim Abd Rahaman, in his appeal to set aside the 60 years jail term and 22 strokes of rotan meted out on him by the Shah Alam Sessions Court in 2007.

However, Abdul Rahim, a HIV patient, failed to convince justices Suriyadi Halim Omar, Hasan Lah and Ahmad Maarop who dismissed his appeal and upheld his sentence.

law conference lingam tape 311007 fahri azzat Fahri ( right ) had argued that Sections 377A and 377B of the Penal Code, which make committing carnal intercourse against the order of nature a crime, infringe Article 8 (1) and (2) of the Federal Constitution which states that all persons should be treated equally and prohibits discrimination against citizens.

He said a scrutiny of Section 377B clearly showed that the provision only applied to males because it referred to a person introducing his penis into the anus or mouth of another person.

    

Fahri said the provision defined "carnal intercourse against the order of nature" so narrowly that only males could be charged with such an offence.

That implied that females could never ever be charged with carnal intercourse against the order of nature, he said, contending that females could actually commit carnal intercourse.

"As it stands, there is a virtual immunity for females against one of the severest criminal laws in Malaysia, he said.

"If a woman uses a vibrator to penetrate a man's anus and she derives sexual pleasure from it, would that not be "carnal intercourse against the order of nature" in the ordinary sense of the word?"

Written judgment requested

Fahri also argued that the section also invaded the right to privacy provided under the Federal Constitution as it criminalised consensual sexual acts between two persons.

This led Suriyadi to ask: "Are you saying that homosexuals among consenting adults is legal? In other words, what happens in the bedroom is none of the government's business?"

Abdul Rahim, 39, pleaded guilty to committing the offences at a flat in Gombak, Selangor between April 18 and May 8, 2007. He took the matter to the Court of Appeal after losing his appeal at the High Court.

Deputy public prosecutor V Shoba submitted that the argument on the constitutionality of the sections was unfounded because the issue referred to consenting persons in an sexual act.

She said that in this case, the victim was a 15-year-old boy, who, the law said, was incapable of giving consent to an act.

Outside the court, Abdul Rahim's other counsel, Amer Hamzah Arshad, said the novel points were of public interest and there should be a written judgment.

Earlier, Fahri had requested a written judgment but Suriyadi said the quorum would only write if ordered by the Federal Court as was the norm with subordinate court cases.

- Bernama