On February 12, 2014, the Kuala Lumpur Court of Appeal is slated to hear the government’s appeal of the High Court’s January 9, 2012 decision to acquit Anwar of violating article 377 of the Malaysian penal code.
“Malaysia’s authorities are opening themselves up to international ridicule for prolonging their political case against opposition leader Anwar Ibrahim,” said Phil Robertson, deputy Asia director. “Anwar’s trial would be farcical were the penalties not so severe and the trial’s message to Malaysia’s Lesbian, Gay, Bisexual, and Transgender [LGBT] community not so grave.”
Malaysia should repeal article 377 of its penal code, which is an anachronistic colonial era law that criminalizes “carnal intercourse against the order of nature." The law effectively criminalizes same-sex sexuality, and does not distinguish between consensual and non-consensual sex, in defiance of international human rights standards. In its place, Human Rights Watch has long recommended the passage of a modern, gender-neutral rape law.
Anwar was first arrested in July 2008, a month after the alleged incident took place. After a long series of delays, he was found not guilty in January 2012 after the judge found that crucial DNA evidence submitted by the prosecution may have been compromised.
Should the appeals court overturn the acquittal, Anwar would face up to 20 years in prison and whipping. He would also have to relinquish his seat in parliament and be barred from standing for election for five years if he receives any prison sentence or is fined more than RM 2000 (US$600).
This is the fourth time that Anwar has been charged under article 377, a law that has been invoked only seven times since 1938, according to the Women’s Candidacy Initiative. The willingness of the government of Prime Minister Najib Razak to use the law in such a high-profile case shows the danger it poses so long as it remains on the books.
So-called “sodomy laws” such as Malaysia’s article 377 contravene broadly accepted international legal standards. The United Nations (UN) Human Rights Committee, the international expert body that monitors civil and political rights, held in 1994 that sodomy laws violate rights to privacy and non-discrimination. The 2007 Yogyakarta Principles, which apply international law to issues of sexual orientation and gender identity, call for governments to “repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent.” In 2011, leading members of the Commonwealth of Nations, to which Malaysia belongs, called for the abolition of sodomy laws.
A November 2011 report by the UN high commissioner for human rights recommended that UN member countries “repeal laws used to criminalize individuals on grounds of homosexuality for engaging in consensual same-sex sexual conduct.” The high commissioner’s report, commissioned under a landmark resolution on “human rights, sexual orientation, and gender identity” that was adopted by the UN Human Rights Council on June 17, 2011, made numerous other recommendations, including several directly relevant to Malaysia. They include: “enact comprehensive antidiscrimination legislation that includes discrimination on grounds of sexual orientation and gender identity”; and “ensure that individuals can exercise their rights to freedom of expression, association, and peaceful assembly in safety without discrimination on grounds of sexual orientation and gender identity.”
“Malaysia’s government should cease criminalizing consensual sexual relations and discriminating on the basis of sexual orientation and gender identity,” Robertson said. “Prime Minister Najib and his government should recognize both in law and practice that LGBT rights are human rights.”