Of sodomy, caning and potato chips

Snacking on the difference in attitudes and competencies between the English Court of Appeal and the Malaysian Court of Appeal.

Some months ago, my learned friends, Fahri Azzat and Amer Hamzah appeared in the Court of Appeal to argue an appeal. They were representing a man who was found guilty of sodomising a boy. He was sentenced to 60 years of imprisonment and 22 strokes of caning although he maintained that the sodomy acts were consensual.

During the appeal, the two lawyers brought up constitutional issues which have never ever been brought up before. As these issues were never brought up before, it follows that there has never been any judicial pronouncement on those constitutional issues. Those issues are:

(i) the law provision which makes the act of sodomy illegal is unconstitutional as it transgresses the right to privacy, which is a part of our fundamental liberties;

(ii) the act of criminalising and penalising the act of sodomy, when it is consensual, amounts to an act of discrimination and inequality, especially against men with homosexual tendency. As discrimination on the basis of, among others, gender, is prohibited by the Constitution, it follows that the criminalisation of consensual sodomy is unconstitutional;

(iii) the caning sentence is also discriminatory in nature as under the law women cannot be caned.

Now, I am not going to touch on whether the arguments were correct or not. But these arguments were taken up for the very first time in our legal history. Furthermore, they were taken up in the second highest Court of the land, namely, the Court of Appeal.

It goes without saying that the Court of Appeal should have seen it fit to hear the arguments in totality. Then it should consider the arguments in depth. Then it should decide on the arguments. After that, it should write a proper and well reasoned grounds for its judgments so that the people know what it was thinking and how it came to such thinking.


That decision would have been one of the most important decisions in our Constitutional law. It will serve as a precedent and as a guideline to all of us Malaysians, to the police, the Attorney General’s Chambers, to legal practitioners, law lecturers and law students alike.

Guess what happened? Fahri was cut short in the middle of his constitutional issues/points. The learned Judge asked him to stop arguing midway through his arguments. He was asked to go to the next point. After hearing the both of them, the Court of Appeal dismissed their case there and then.

Quite obviously, the Court of Appeal did not think much of the various constitutional issues – which touched on the peoples’ constitutional rights – which were raised for the first time.

It was reported that one of the learned Judge said, “Are you saying that (homosexuality) among consenting adults is legal? In other words, what happens in the bedroom is none of the government’s business?” during the hearing.

Needless to say, no written judgment was given until the time I am writing this (5th March 2010).

As that particular criminal matter originates from our Sessions Court, no further appeal to the Federal Court could be made.

In my opinion, the failure to give a reasoned judgment in a matter involving such important constitutional issues is a loss opportunity. It reflects a nonchalant attitude towards every argument which is deemed “new” or “unconventional” by the Court.

We are therefore stuck in conservatism and the law – which is supposed to develop as time passes by in order to reflect a currency of approach – lies stagnant within the robes and wigs that Judges wear.

On the other hand, the Court of Appeal in England sat to hear a question on whether the snack product Pringles is similar to a crisp and made from the potato and therefore subject to standard-rate VAT.

Potato-ChipsAfter a long and laborious arguments, the English Court of Appeal considered what was branded as an “Aristotelian question” and came up with a judicial pronouncement which is not only well reasoned but also a delight to read.

The learned Judges thought that “The issue of classification should not be given an ‘over-elaborate, almost mind-numbing legal analysis’.” The report on that case went on to say:

Lord Justice Mummery, agreeing, noted the “urbane” submissions of Cordara (the Queen’s Counsel representing Pringles), which referred to “the potato as a fiscal contaminant” and drew attention to the “essential characteristics of the paradigm potato crisp”. The judge rejected the argument that Pringles also have 33 per cent fat, and if a product has a number of significant ingredients it cannot be said to be “made from” one of them. Lord Justice Mummery pointed out that “most children, if asked whether jellies with raspberries in them were ‘made from’ jelly, would have the good sense to say ‘Yes’, despite the raspberries.

The report on that potato chips case can be found here.

And so there we have it.

In Malaysia, questions on the constitutionality of the criminalisation of homosexuality and the punishment of caning are just brushed aside without any known reason.

But in England, the Court of Appeal had sat to hear “Aristotelean question” on what constitutes potato chips and came up with a written and well reasoned judgment on that question.

Sodomy, caning and potato chips.

Which one is more important?

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Posted on 6 March 2010. You can follow any responses to this entry through the RSS 2.0.

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