The first thing that came to mind when we read the press release of the Malaysian Bar issued on February 11t by its President, Christopher Leong, on Dato Seri Anwar Ibrahim’s conviction, was the President misrepresenting the law and facts on the case. We were in utter disbelief as to how a President who is supposed to represent the learned members of the Bar could have arrived at such a misleading position. Indeed, as Leong himself put it, “It is a strange world that we live in.”
Any lay person who has read the relevant Penal Code provisions and the press summary of the judgment would surely have concluded that there can be no interpretation under Sections 377A and 377B of the Code other than that Mohd Saiful Bukhari Azlan was a victim.
Contrary to popular belief, sections 377A and 377B, strictly speaking, do not make being a homosexual or even engaging in a homosexual relationship per se an offence; rather, it makes it a crime for a man to insert his manhood into the anus of another, be the person a man or woman, young or old, with or without consent. A call to charge a victim of a sexual crime, with or without consent, for abetting in the crime, such as suggested by the President of the Malaysian Bar, is preposterous to say the least, and would set an extremely dangerous precedent for all sex crimes. Leong should have known that this is not a tenable position in law. Yet he issued the following misleading statement:
“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.”
One would have thought that it is the duty of the Malaysian Bar to clarify misconceptions whenever they occur in the public sphere. While judgments handed down by the court of law should and have always been open to debate, the Bar must also be mindful of its duty to protect the judiciary against unfair and scurrilous attacks. In fact, Section 42 of the Legal Profession Act 1976 specifically spells out that one of the objects of the Malaysian Bar is to protect “the administration of justice in Malaysia from being brought into hatred or contempt”.
Instead of abiding by its statutory duty, the president of the Malaysian Bar has instead chosen to give credence to such misconceptions and, worse still, participate in their spread, thus contributing to the tainting of the judiciary. In such circumstances, not only is the Bar in dereliction of its duty to defend the judiciary, but has also embarrassed the courts by putting the whole case under an erroneous, misconstrued and misconceived contextual light, and by fueling the “perception that Dato’ Seri Anwar Ibrahim has been persecuted, and not prosecuted.”
It is pertinent to point out that the Bar has also failed to highlight that there are hundreds of prior cases that were brought before the courts, where the accused were charged and tried pursuant to section 377B of the Penal Code. There was even a case initiated prior to Anwar’s conviction (Abd Rahim bin Abd Rahaman v PP), where the court imposed a sentence of more than five years for a similar offence. Silence on these important facts on the part of the Bar has created the impression of selective prosecution under the so-called provision that Leong has alleged to have been “rarely … used,” although the truth is that it is not at all rarely invoked.
Leong’s outrageous statement has clearly misled the public. Failing to explain and clarify the law and relevant facts is one thing, but to misrepresent them is another, which is simply appalling. As members of the Bar ourselves, we call upon him to rectify the misleading statement, tender a public apology and correct misconceptions held by international bodies as a result of the statement. Failing this, we call for his resignation and public censure as the President of the Malaysian Bar.
Lukman Sheriff Alias and Azril Mohd Amin are lawyers practising in Kuala Lumpur and members of the Bar.