The Malaysian Bar refers to the decision of the Federal Court on 10 February 2015 with respect to the appeal by Dato’ Seri Anwar Ibrahim against his conviction and sentence to five years’ imprisonment by the Court of Appeal for a charge under section 377B, read together with section 377A, of the Penal Code.
The parties in the appeal were previously given a full hearing before the Federal Court between 28 October 2014 and 7 November 2014. Having listened to both parties and considered their arguments and submissions, the Federal Court had adjourned the matter for consideration and deliberation. On the morning of 10 February 2015, the Federal Court delivered an extensive judgment and affirmed the conviction and sentence of five years’ imprisonment of Dato’ Seri Anwar Ibrahim.
The Malaysian Bar has not yet had the opportunity to peruse the extensive written grounds of judgment of the Federal Court, and makes no comment at present as to the grounds for the affirmation by the Federal Court of the conviction and sentence of Dato’ Seri Anwar Ibrahim, save to say that in a criminal trial and any appeals arising therefrom, the accused need only raise a reasonable doubt in the prosecution’s case. Where there is any such reasonable doubt, the accused must be acquitted. The hearing of Dato’ Seri Anwar Ibrahim’s appeal was extensively reported in the media, and thus the decision of the Federal Court has come as a surprise to many.
Sections 377A and 377B of the Penal Code criminalise sodomy and oral sex (fellatio). Section 377B provides that whosoever voluntarily commits the acts described in section 377A shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping. However, section 289 of the Criminal Procedure Code provides that no male above the age of 50 years shall be punishable with whipping.
It is notable that Dato’ Seri Anwar Ibrahim was not charged under section 377C of the Penal Code for forced sodomy or sodomy rape, although there may appear to have been some allegation of coercion made in the proceedings. Section 377C provides for essentially the offence of sodomy rape, and states that whoever voluntarily commits sodomy “on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping”.
It may be said that Dato’ Seri Anwar Ibrahim has been convicted of an offence, sentenced to five years’ imprisonment, and will be disqualified from being a Member of Parliament with respect to a charge that seems, on its face, to be a victimless offence.
This has also given rise to questions or concerns as to why the complainant, Mohd Saiful Bukhari Azlan, who was alleged to have been a participant in the act of sodomy, was not charged for abetment under sections 377A and 377B, read together with section 109, of the Penal Code.
Further, the charge against Dato’ Seri Anwar Ibrahim is based on a provision of the Penal Code that has rarely been used. Given this, it is remarkable that Dato’ Seri Anwar Ibrahim has been prosecuted and convicted twice for an alleged offence of sexual acts between adults wherein the charge does not contain elements of coercion.
It is a strange world that we live in.
These glaring anomalies fuel a perception that Dato’ Seri Anwar Ibrahim has been persecuted, and not prosecuted.
Christopher Leong
President
Malaysian Bar
11 February 2015