Gerard Lourdesamy: The Judgement of Anwar; and opinions related to Section 377

'The judgment of the Federal Court in Datuk Seri Anwar Ibrahim’s final appeal against his conviction for sodomy comes as no surprise to many of us. The purpose of a criminal trial is to do justice. The role of the prosecutor is not to seek a conviction at all costs but to ensure that justice is done to both the victim and the accused. The process has to be fair and impartial. The golden thread that runs through our system of criminal justice is the presumption of innocence. The accused does not have to prove his innocence. It is for the prosecution to prove the charge beyond a reasonable doubt which simply means that a judge or jury must be sure before they can convict. The benefit of any doubt must be given to the accused. But the doubt must be a rational and not improbable doubt. Since consent is not required for a charge under section 377A of the Penal Code by implication what it means is that this section deals with cases of consensual unnatural sex in the form of sodomy or fellatio (oral sex). Section 377C of the Code deals specifically with unnatural sex without consent and by implication it may involve some element of force or violence. That is why a heavier penalty is imposed by this section on offenders.'

See more at: http://www.themalaysianinsider.com/sideviews/article/the-judgement-of-anwar-ibrahim-gerard-lourdesamy#sthash.xIZBrJyA.dpufLink

In Malaysia Chronicle: BOASTFUL UMNO MINION: Shafee draws flak with uncouth boast 'Anwar would’ve fainted' if he took the stand
'Those intent on continuing to politicise the Federal Court’s unanimous decision convicting Datuk Seri Anwar Ibrahim of sodomising his former aide Mohd Saiful Bukhari Azlan will not have a leg to stand on if Anwar had been called to the stand.

The grilling by the prosecution team, Tan Sri Dr Muhammad Shafee Abdullah said, would have been incessant. The torrent of questions would have come in rapid-fire, staccato bursts, withering and unrelenting. Anwar, Shafee said, would have been cut to pieces.

The scale would have also tipped in the prosecution’s favour from the start, had Anwar’s alibi witnesses taken the stand, he said.

Shafee began leading the prosecution team only when the case was brought to the Court of Appeal in 2012. He said if Anwar had, at the High Court in 2010, agreed to subject himself to questioning by the deputy public prosecutor, it would have been like bringing the proverbial knife to a gunfight.

"If the prosecution had been cross-examined, I think he would have fainted in the witness box because he would not be able to explain a lot of things, like why he put in his defence of alibi and then backed off.

"He made silly remarks from the dock, saying this was because his alibi witnesses would be interviewed by the police. Look, that’s the whole idea of a notice, isn’t it? You give a notice of alibi so that the police can interview the alibi witnesses as provided for by the law (under the Evidence Act 1950).

"I can easily tell you hundreds of facts that would have been zoomed in on if he was cross-examined. He knew that, so that is why I believe he took the cowardly step of giving a statement from the dock," he told the New Straits Times in an interview, a day after he secured the conviction against Anwar under Section 377B of the Penal Code.'
More:
http://www.malaysia-chronicle.com/index.php?option=com_k2&view=item&id=460301:boastful-umno-minion-shafee-draws-flak-with-uncouth-boast-anwar-wouldve-fainted-if-he-took-the-stand&Itemid=2#ixzz3Rgu6n4Wn

Malaysiakini: Section 377C more serious than 377B, says AG

'Opposition leader Anwar Ibrahim, who was convicted and sentenced to five years’ jail for sodomising his former aide was charged under Section 377B of the Penal Code, a less serious offence than section 377C.'

More:
http://www.malaysiakini.com/news/289168

Kim Quek:

'AG Gani Patail’s deliberate misinterpretation of Section 377B in order to cover up his dereliction of duty to also charge Saiful for sodomy must be condemned.
Let me quote Section 377B of the Penal Code: "whoever voluntarily commits carnal intercourse against the order of nature shall be punished …..". Is it not crystal clear that this section is designed to punish specifically those who have committed the act VOLUNTARILY? Then on what basis could Gani claim that an offender of sodomy "with or without consent" can also be charged under this section? Explain please, Gani.
Since Saiful was adamant that he was sodomised without his consent, which essentially means that he was raped, why wasn’t Anwar charged under Section377C which was meant for such cases?
Gani claims that he has discretion to charge Anwar under either Section 377B or 377C, but the truth is that he hasn’t. He has only the discretion under Federal Constitution, Article 145(3) to either charge or not to charge for an offence, but he certainly does not have the discretion to charge for an offence under the wrong law.
Actually, the AG had 3 options at the outset of the case: a) charge both Anwar and Saiful under Section 377B, b) Charge Anwar under Section 377C, or c) not to charge Anwar.
And at the finality of the case now, the AG is left with only one option, and that is: charge Saiful under Section 377B. He is bound to do so, as Anwar has already been convicted under Section 377B by the Federal Court, meaning that sodomy was committed by the two parties - voluntarily.