Sodomy II: Lawyers slam Bar Council president for 'misrepresenting the law'

Bar Council president Christopher Leong's criticism of the sodomy conviction against Datuk Seri Anwar Ibrahim last week has left a sour note among several Bar members.

Questions have been raised on how Leong, as Bar president, could have misrepresented the law and case facts when he questioned why Mohd Saiful, as the complainant in the sodomy case, was not charged with abetment.

Below is the full statement from the lawyers:

Call for Resignation and Censure of the President of the Malaysian Bar for Misleading the Public – Lukman Sheriff Alias and Azril Mohd Amin

The first thing that came to mind when we read the press release of the Malaysian Bar issued on February 11th, 2015, 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 on how a President who is supposed to represent the learned members of the Bar could have arrived at such 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 the position of Mohd Saiful Bukhari Azlan as a victim and nothing other than that.

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 a crime where he or she is a victim, such as suggested by the President of the Malaysian Bar, is simply 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 such 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 had instead chose to give credence to such misconceptions, and worst 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 the Bar had 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 other 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 5 years for a similar offence. Silence on these important facts on the part of the Bar 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 and tender a public apology as well as to clarify with all international bodies and entities, with which the image of our judiciary and its administration of justice has been tainted. Failing this, we call for his resignation and public censure as the President of the Malaysian Bar.

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*Lukman Sheriff Alias and Azril Mohd Amin are lawyers practising in Kuala Lumpur and members of the Bar.

**The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of Astro AWANI.