Backing the accused
Writer: Lord Bobo
Published: Fri, 16 Dec 2011
Dear Lord Bobo, when did “carnal intercourse against the order of nature” enter Malaysia’s Penal Code? Is it an archaic law? @adriene, via Twitter
THE crime of carnal intercourse against the order of nature penetrated the Malaysian Penal Code due to the British.
It was chronicled as early as 1290 that the Common Law in England held sodomy to be a crime punishable by being burnt alive. This was later penalised by hanging under the Buggery Act 1533. His Supreme Eminenceness is not making this up – there really was a Buggery Act 1533, which incidentally was known prior to that as “An Acte for the punysshement of the vice of Buggerie”.
The Buggery Act was passed during the reign of King Henry VIII (above), becoming England’s first civil sodomy law. The Act really buggered those who fell foul of it, as they were not only sent to the hangman, but the law allowed a convicted sodomite’s possessions to be taken by the government, as opposed to going to their next of kin. It also sent shivers down the tailbones of priests and monks, as they could be executed for buggery – which was harsh, seeing as they could not be executed for murder.
The British grew a fondle more civilised when they removed oral genital sexual acts from the definition of buggery in 1817, which strongly indicates that oral sex was a form of buggery prior to that. In 1861, the death penalty for buggery was formally abolished in England and Wales. In 1967, buggery laws were repealed by the United Kingdom Parliament.
Since Malaysia was colonised by the British, despite the claims of some silly politicians and dubious historians, we naturally received the laws that the British practised, among others, the outdated notion of buggery, which was formally referred to as carnal intercourse against the order of nature. This is unfortunate because in Malaysia, this does not simply encompass the act of sodomy but fellatio as well, no matter how consensual it was/is/will be.
Interestingly, buggery laws were used by Henry VIII for “political” reasons – executing monks and nuns and legally taking possession of their monastery lands. His Supreme Eminenceness wonders whether sodomy laws will ever be used for political reasons in Malaysia.
In any case, Lord Bobo strongly believes that the Malaysian law infringes Article 8(2) of the Federal Constitution, as only males can be convicted under that provision – which makes it gender discriminatory! Please donate generously to LoyarBurok so we may challenge and remove the offending provisions.
Lord Bobo, do our courts practise what we see in those Hong Kong TVB courtroom dramas, where “if there’s a benefit of doubt, it will be in favour of the accused”? @AdrianNCF, via Twitter
TO answer the question – of course! We call this the the concept of the “golden thread” of the criminal justice system, and it was first articulated by the wonderfully named Viscount Sankey (right).
The prosecution must prove the charge beyond a reasonable doubt. Flowing from this, any doubt would be in favour of the accused.
This single “golden thread” runs throughout English criminal law, and it also now finds itself in Hong Kong TVB courtroom dramas as well as in the courts of Malaysia.
Of course, Malaysia has no juries and the sole arbiter of fact and law are experienced professional judges, so it’s a little less easy to create doubt. This is good and bad, depending on whether you are guilty or innocent.