Archaic or not, sodomy is a crime and Anwar is guilty

No religious group has objected to Section 377A. Therefore, it is ludicrous to label Section 377A and Section 377B as archaic. Surely, the root of such blind over-generalisation must be to rake up support for Anwar.

COMMENT

By Iskandar Mohamad

In a rash and foolish attempt to lobby against the conviction and sentence imposed on Anwar Ibrahim, Human Rights Watch, the Malaysian Bar Council and even Zaid Ibrahim amongst others, seem to have indirectly confirmed Anwar’s guilt by protesting against the law used to convict him.

Their outcry against the “archaic” nature of Section 377A of the Penal Code indirectly endorses Anwar’s guilt because they are, by their silence, saying that although he is guilty, the courts ought not to have tried him for the offence.

More importantly, such a move seems to imply that they all know Anwar is guilty, and that he is not being particularly truthful about it. Hence, the red-herring “archaic” argument.

However, to date, the arguments put forward in support of its repeal have defied logic.

According to Zaid Ibrahim, it does not make sense to retain the law when apparently “so many in Putrajaya were already indulging in such activities and getting away with it.” That being the case, all the more the law should be upheld, preserved and enforced to prevent acts against carnal nature! Such contradictions by legal experts indicate that their pro-Anwar statements are nothing but hot air with little, if any, substance.

Christopher Leong, on the other hand offers lame overtures of support by recycling press statements in support of Anwar. As a lawyer and President of the Bar Council, surely he is capable of formulating a better defence of Anwar. Unfortunately, no.

Consider the following:

• January 9, 2012 press statement by Lim Chee Wee, President of the Malaysian Bar Council

“The charge against Dato’ Seri Anwar Ibrahim, which is based on an archaic provision of the Penal Code that criminalises consensual sexual relations between adults, should never have been brought. The case has unnecessarily taken up judicial time and public funds.”

• March 9, 2014 press statement by Christopher Leong

“A law is only good and just if it is consistently and equally applied and enforced. It is extraordinary that Dato’ Seri Anwar Ibrahim has been prosecuted and convicted twice, in a country that has rarely seen a prosecution and/or conviction for an offence of consensual sexual acts between adults under section 377A, read with section 377B, of the Penal Code.

“This glaring anomaly and inconsistency brings the administration of justice into disrepute. It also fuels a perception that Dato’ Seri Anwar Ibrahim is being persecuted, and not prosecuted.

“The charge against Dato’ Seri Anwar Ibrahim is based on an archaic provision of the Penal Code, and should never have been brought. The case has unnecessarily taken up judicial time and public funds, and has muddied the waters of our justice system.”

• February 11, 2015 press statement by Christopher Leong

“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.”

Such views expressed so openly by the President of the Malaysian Bar Council certainly raises eyebrows because they reek of a behaviour that tends to oppose or defy the authority, judicial integrity and dignity of the court.

These comments made outside the court, seem to belittle, mock, obstruct, interrupt and degrade the court and its proceedings. Such misconduct impairs and threatens the fair and efficient administration of justice.

Those trained in the law and practising law should know better than to raise questions that cast aspersions on court judgments, especially relating to Anwar, who for decades, blazed through the corridors of Malaysian history. A crime is a crime, and it seems like the curtain call for him this time.

An understanding of the history of Section 377 is important to ward off any distorted view of the case.

The Penal Code was first enacted in 1936. Since then, several reviews and amendments of its contents have been made.

The Penal Codes of 42 former British colonies carry the equivalent of our section 377A, criminalising anal sex between men and other homosexual acts.

The provision was first introduced by British colonial authorities in the Indian Penal Code, which was later used as the model for sodomy laws in many other British colonies, and in many such colonies it even carries the same section number.

Section 377A is in line with Islamic teachings (the story of Lut in the Quran) and biblical teachings. The phrase “carnal intercourse against the order of nature” is attributed to Sir Edward Coke, a legendary English politician.

No religious group has objected to Section 377A. Therefore, it is ludicrous to label Section 377A and Section 377B as archaic. Surely, the root of such blind over-generalisation must be to rake up support for Anwar.

In truth, Section 377A has been given special treatment and emphasis recently due to debates which rage on in the Western world with regard to consensual sex in the context of homosexuality and same-sex marriages, especially in the US, Europe, Canada and Australia.

The Penal Code has previously been tabled before the Special Select Committee of Parliament during which all of its sections were put up for public examination and review. Special emphasis was placed on some sections of the Code which were topical at that time. No one objected to this particular provision when invited to give their input.

Why, then, are people claiming that the provision is “archaic” only now?

Obviously, they are only doing so to protect the interest and future of Anwar, even though the sentence has already been passed.

Undeniably, there are many other such cases where the same offence is committed between two consenting adults behind closed doors.

The difference is that in this particular case, a report was made and the police were obliged to carry out an investigation. Once the investigation was carried out and credible evidence obtained, the Attorney-General was duty-bound to bring the matter before a court of justice, which in turn was obliged to adjudicate on it.

Otherwise, the country’s judicial system will be seen as non-functioning. No credible government could allow that to happen, not in any civilised society – not when it is clear a law has been broken. Should there be such a public outcry then?

Why then are some quarters blaming the government and the authorities for carrying out their duties in accordance with the law? The reality is that those who think they know better will hurl brickbats on some occasions when the law is enforced and on other occasions when it is not!

It appears that to such citizens, perceptions of what is right and wrong have different shades of black and white depending on who is regarded as the hero and the villain.

So, was Anwar convicted of an archaic offence? Do not 42 other nations still maintain that particular offence in their statute books? Those who say otherwise owe us a proper response.

Iskandar Mohamad is an FMT reader