Why Christopher Leong is right - An observer
I refer to Bar Council president must retract statement on Anwar verdict - Aidil Khalid and others.
I shall refer to this hereinafter as the "Aidil Letter".
It is not my intention to reply at great length to every point in a letter that attempts to castigate Bar Council president Christopher Leong, for his recent remarks on Datuk Seri Anwar Ibrahim's Federal Court case, popularly dubbed "Sodomy II".
I merely want to pick up on one point raised by Leong, viz, why the complainant, Mohd Saiful Bukhari Azlan, the alleged participant in the act of sodomy, was not charged for abetment.
This point sparked a great deal of sound and fury, signifying nothing, in the "Aidil Letter".
Leong concluded his remarks with these words: "It is a strange world that we live in".
One does not even need to venture beyond the four walls of the various Anwar Ibrahim sodomy trials to see how right he was – at least where this particular point is concerned.
In "Sodomy I", both Dr Munawar Anees and Sukma Darmawan were charged, convicted and sentenced under S377D of the Penal Code, the essence of the charges being that they had "allowed Anwar to sodomise them".
The exact wording of the charge against Munawar was:
"That you in the month of March 1993, at night, at No.8, Jalan Setia Murni 1, Bukit Damansara, in the Federal Territory of Kuala Lumpur, committed an act of gross indecency with one Dato' Seri Anwar Ibrahim by allowing him to introduce his penis into your anus and you had thereby committed an offence punishable under section 377D of the Penal Code".
(The charge against Sukma was identical, mutatis mutandis.)
This puts paid to any assertion that in S377 offences, it is only the "active" partner who can be liable, not the "passive" one.
In full, S377D provides:
"Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years."
Hence, Sukma and Munawar were treated, in effect, not as victims, but as accomplices.
That is wholly consistent with the long history of S377, a provision that exists throughout the Commonwealth.
It was as long ago as 1918 that India recognised that a passive consenting party to the offence of unnatural carnal intercourse, if a rational being of full age, should naturally be treated as an abettor (Ganpat v. Emperor [AIR 1918 Lah. 312 (2)], a contention supported by case law ever since.
The fact that S377B was invoked is critical. Abetment could not have applied, nor could S377D, if this had been a "sodomy rape" (to coin a phrase) charged under S377C.
In that case, there would be no question whatsoever of charging Saiful. But that was not the way the prosecutor's discretion was exercised.
They went under S377B, perhaps because proving all elements of S377C would have been harder on the facts. But it has to be one or the other – it is either consensual, or not. Suggesting coercion and then charging under S377B is trying to have your cake and eat it, too.
But the Aidil Letter meanders erratically past this point, without even seeing it:
"A plain reading of Sections 377A and 377B of the Penal Code must certainly lead a reader thereof to conclude that the statutory provisions do not criminalise homosexuality per se but sodomy, namely the act of insertion by a man of his penis into the anus of another person, be that a man, woman or child. Such an act is considered vile by the values held by the vast majority of Malaysians and rightly attracts sanction."
This betrays a lack of knowledge of the Labouchere Amendment and the history of S377, but more importantly is irrelevant, as it does not address Leong's question (clearly justified, as I have demonstrated) about why no charge was preferred against a (by definition) consenting party?
Why the difference between Sodomy 1 and Sodomy 2? The anomalies are indeed "glaring".
It is then said, however, that by analogy to a corruption case (in which the receiver is charged while the giver is used as a witness) Saiful cannot be charged.
But this is both fallacious and begs the question. There is no presumption that an accomplice who "turns Queen's evidence" (as they used to say), thus becomes completely exempt from prosecution. If X and Y have a history of 7-8 corrupt past transactions, would X therefore completely escape punishment if he appeared as a prosecution witness against Y for the 9th transaction only?
It may result in a lighter sentence, or other mitigating benefits, but the fact is that sodomy offences (as the cases above show) are "absolute": once it's in, you're in.
If Saiful had been charged as an accomplice, this would raise very interesting further questions relating to corroboration. But that is another story.
I personally do not subscribe to the histrionic sentiments expressed in the Aidil Letter that "…(t)his is a direct attack on the Federal Court without any legal basis with the effect of bringing the Federal Court into disrepute and odium."
(The Aidil Letter seems not to know the difference between the Federal Court's eventual judgment and pre-trial prosecutorial discretion, which is the main point addressed by Leong.)
Temperate and measured analysis of a concluded case, with a legal basis, is not an attack on any court. Nor are fair questions.
But temperance, fairness and measured analysis seem sadly lacking in some responses to Leong's remarks. - TMI
Gani: Bar Council president wrong on section 377C
February 13, 2015
Shafee: Charge Leong, Ambiga with contempt of court
FMT Reporters | February 18, 2015
Comments meant that the government had influence over the judiciary, says prosecutor.
Bar president told to retract statement questioning Sodomy 2 verdict
Sections 377A, 377B - Bar Council misleading public
No wonder the public seem confused and none the wiser.