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Saturday, February 14, 2015

No way out for AG but to charge Saiful, too


YOURSAY ‘He does not have discretion to charge an offender under the wrong law.’

Section 377C more serious than 377B, says AG

Kim Quek: Attorney-general (AG) Abdul Gani Patail’s deliberate misinterpretation of Section 377B in order to cover up his dereliction of duty to also charge Mohd Saiful Bukhari Azlan with 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?

Since Saiful was adamant that he was sodomised without his consent, which essentially means that he was raped, why wasn’t Opposition Leader Anwar Ibrahim charged under Section 377C 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 only has the discretion under Article 145(3) of the federal constitution to either charge or not to charge for an offence, but he certainly does not have the discretion to charge an offender under the wrong law.

Actually, the AG had three options at the outset of the case:

a) Charge both Anwar and Saiful under Section 377B.

b) Charge Anwar under Section 377C.

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.

Gerard Lourdesamy: The Federal Court said section 377A of the Penal Code does not require consent. It did not say with or without consent. If not, why is Section 377C of the Code there?

Section 377C is relevant since Saiful claimed that he was forced to take part in the acts of sodomy with Anwar and that he did not do it voluntarily. So why wasn't Section 377C invoked?
If you read the notes of evidence there is not one shred of evidence that Anwar used force, threats or intimidation to sodomise Saiful. The alleged invitation on the day in question: "Can I f*** you today?" was only an invitation that Saiful could have politely declined and left the room since it was not locked.

If he was afraid of Anwar, why allow himself to be raped eight or nine times prior to the date of the alleged incident?

An objective and impartial reading of the evidence shows that Saiful was an accomplice and without corroboration the conviction is unsafe and unsatisfactory. The DNA evidence does not help if the sex was consensual.

ConstitutionIsSupreme: Abdul Gani, in my opinion you chose to charge Anwar under Section 337B and not 337C simply because you knew you have zero grounds to charge Anwar under Section 337C as there is no evidence (created or real) to help Saiful to paint the picture that he is an unwilling partner in this sodomy charge. Period.

Opah: So if we are caught for traffic offences, it is okay to bribe the police officers? And that only the police will be charged with corruption and we will go scot-free?

If fact we should all carry RM50 notes with us when driving, give them to the police officers whenever we are stopped by them, and then tell the world that we bribed them. A brilliant AG we have here.

MingXiang: Thank you AG Gani Patail. So it is out of the goodness of their hearts that the prosecution chose to charge Anwar under a less serious offence. Also, the merciful judges did not enhance the jail sentence. How very kind of them.

Anwar and his family will be forever indebted to a compassionate bench and a considerate prosecution. They will all certainly be rewarded in the hereafter.

Pputeh: Just like in the Altuntaya Shaariibuu case, 'motive' was not important to convict here. The consenting partner was not charged.

He carried KY Jelly with him. It takes two hands to clap and so in this case both should be charged. Herein lies the public perception of unfairness to Anwar.

Anonymous #44199885: All should be treated equally before the law - that’s a key principle underlying our constitution. The Bar president remarked on the act being consensual.

If the sodomy act is consensual, then both participants should be charged. Not just the prominent one as in this case. Such a practice smacks of injustice.

Sodomy as a crime is rooted in biblical thought and teachings of morality and created to enforce morality. Harsh treatment of such an offence is no longer regarded as an acceptable practice where the act is consensual.

Further if the act is consensual and there is no detriment nor injury to the public, a sentence of five years is in my view harsh.

A much lighter sentence, for example a fine or binding over for good behaviour, would have been sufficient to convey public opprobrium to an immoral act; not a long custodial sentence which should be reserved for serious offences injurious to public well-being.

Counselling would have been a better, more appropriate and effective option.

Longyan Ren: It looks like Section 377B where “with or without consent” is not an ingredient can very conveniently be used to entrap your homosexual/bisexual partner. Too bad Anwar walked into the trap.

Suppose I have been having carnal intercourse with my husband all these years, and then one day I have an acrimonious fallout with him and very much want him in jail. I report to the police (or perhaps the PM).

And there you are, he will be charged under Section 377B and convicted and jailed for five years. End of story.

Maplesyrup: AG, we fully understand what you are saying. You cannot prove 377C so you take the easy way and slap Anwar with 377B. To me, this action speaks volumes and confirms to all that this is political persecution.

Gen2indian: Pardon the crassness, folks, but some things need to be said. I am 58 and I find it increasingly difficult to have sex with my wife of 30 years.

Anwar, who is 10 years older, can have anal sex, forcibly, with Saiful? I find it laughable and physically impossible and I don't suffer from a bad back. -Mkini

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