Back to Square One – Revisiting Squalor
Just when I thought our country would undergo transformational change politically, it looks like its time to ‘wag the dog’ again! This morning Anwar Ibrahim is being charged with sodomy again. This is inspite of the fact that similar unsubstantiated charges filed 10 years ago against him were overturned by the Supreme Court of Malaysia.
The initial conviction itself was in my opinion unsafe by any juristic standard. Suffice to say no prosecution should be allowed to ammend a charge several times, especially when it relates to the time and place where offence is alleged to have taken place. To compound matters, the victim denied ever being sodomized.
Today many world leaders have expressed concern over the path our country has taken. For me, this is not as important as the fact that a majority of Malaysians feel Anwar has been framed.
THE RULE OF LAW
The prosecution will argue that regardless of the sentiments expressed by the public, the legal process is not about public opinion or popularity. The rule of law demands that everyone be subject to the law regardless of position or rank. As Thomas Fuller said more than 300 years ago, “Be you never so high, the law is above you.”
The idea of the rule of law is seriously contradicted by the idea that the Attorney General has an unfettered descretion on which cases to prosecute and which cases not to. It is important to understand that although the power may seem arbitrary, it is conditioned by public opinion, juristic and ethical considerations. Any AG who disregards these considerations is perpetrating tyranny and injustice.
All criminal prosecutions are brought in the public interest. Laws are made and enforced to uphold the public good and the criminal legal system is an integral part of that process. When the criminal justice system is hijacked to promote a political agenda – the system begins to decay. It loses its moral authority and people lose faith in the legal system.
This Government has shown a willingness to address decades of erosion of public confidence in the legal system by addressing the critical questions of (1) Judicial integrity and (2) corruption within the legal system. Now, after taking one step forward, we are about to take many steps backwards, regressing to the ‘Mahathirian Era’.
I fully concur with the views expressed by John Berthelsen from Asia Sentinel, who wrote,
“Mahathir Mohammad, the long-serving prime minister who quit in 2002, had a single ambition – to reach developed-nation status by 2020. But you cannot be a first-world country with a legal system whose main characteristics are shared by the likes of Zimbabwe , Burma and North Korea . Mahathir, of course, bears a major part of the blame for the legal system, starting from his destruction of the judiciary in the 1980s. But what is going on now, six years after he was succeeded by Abdullah Ahmad Badawi, is nothing more than the United Malays National Organisation’s manipulation of the system a la Robert Mugabe in Zimbabwe . This has nothing to do with ideology but with the dubious necessity of maintaining a political party in power.”
THE CASE AGAINST ANWAR – THUS FAR
The last time around, it was wafer thin. Let us examine whether things have improved this time around:
1. Alibi – derived from the latin language, it means to be somewhere else. A person who can prove he has an alibi proves that he was in another place when the alleged crime was committed. A valid alibi is an absolute defence, until someone invents a machine that allows a person to be at two places at the same time. Since Anwar has provided the police with an alibi, the first issue is to examine why they have rejected his alibi.
2. There are statements that Anwars semen was found on the victim’s underwear. This is very strong evidence, if true. But evidence of what? Evidence that there was some kind of sexual interaction ranging from masturbation to sexual intercourse. But sodomy would require proof of penetration – unnatural sex. Merely finding semen stains on underwear is not proof beyond a reasonable doubt of sexual intercourse. The fact that Anwar was imprisoned so many years and that the police already have his DNA samples, makes this type of forensic evidence quite unreliable and open to allegations of a ‘frame up’.
THE DECISION TO PROSECUTE
The decision whether or not to prosecute is very important. Great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision will seriously undermine the confidence of the community in the criminal justice system.
An initial consideration is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted unless there is admissible, substantial and reliable evidence that the oofence has been committed. When deciding whether the evidence is sufficient to justify the institution of a prosecution the existence of a bare prima facie case is not enough.
Once it is established that there is a prima facie case it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured.
THE COURT OF PUBLIC OPINION
Public opinion is very important factor in any healthy democracy. The Court of public opinion helps society make a better judgements about their government and the shape of their civil society. Negative public opinion in any matter is usually a good barometer of what the Government needs to fix. The strength of public opinion in Anwar’s matter makes it clear that people are fed-up with this brand of below the belt politics and are eager for a more enlightened form of politics. Where we shoot the message and not the messenger. It is important for those in positions of power to respect and abide by public opinion. Public opinion exposes our ugly deeds and bring us to account, examine and see where we stand. Respect for public opinion is the very basis of civil society.
Public opinion could also incite some into acting disorderly in society. Disorderly in such a way that could be against the norms of society, simply because they seek the revelation of the truth. I could name some of these dissidents, Mahatma Ghandi, Nelson Mandela, Tunku Abdul Rahman. All of them stood against standing governments with a view to altering the status quo. In all, God has given every man his sound mind and conscience, to think and judge wisely. So, not all judgement is right. But extract the truth out of Public opinion and at least you will be on the path of democracy.
THE BROADER PICTURE – THE PENAL CODE
The offences related to this prosecution can be found in Section 377 of the Penal Code, as follows:
377A Carnal intercourse against the order of nature.
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.
377B Committing carnal intercourse against the order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.
377C Committing carnal intercourse against the order of nature without consent, etc
Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.
377CA Sexual connection by object
Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to whipping. [Exception: This section does not extend to where the introduction of any object into the vagina or anus of any person is carried out for medical or law enforcement purposes.]
377D Gross Indecency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years
A very good friend of mine, send me an email which proferred the following analysis which I fully concur with.
It would appear to me that by virtue of section 377B and 377D, the following would be TRUE:
(1) a husband can be jailed up to 20 years & liable to whipping if his wife performs oral sex on him. It is, however, not a crime if he performs oral sex on her.
(2) a husband can be jailed up to 20 years & liable to whipping if he has anal sex with his wife, even with her consent or blessing.
(3) a pair of consenting male homosexuals who willingly perform oral sex on, or have anal sex with, each other can both be jailed for up to 20 years and liable to whipping. It is, however, not a crime for a pair of consenting female homosexual to perform any sort of oral sex or anal sex.
By virtue of section 377D,
(1) a couple who willingly spice up their sex life in any aspect other than the ordinary missionary pose in their own bedroom could be deemed as commission of act of gross indecency and can be jailed for up to 2 years.
(2) anyone who owns/buys any sex toy could be charged for “attempts to procure the commission of act of gross indecency” with another person and can be jailed for up to 2 years.
There is no clear definition of gross indecency, even kissing in the public can be summoned to Court – there was a case few years back where a chinese couple was charged with gross indecency as they kissed in the KLCC garden.
It is time for serious law reform in the Penal Code, law’s like this ignore the social realities that are prevalent in our society. It ignores the right of individuals to regulate their own affairs without intervention in areas, where their behaviour is not harmful to others and is consensual. I fully accept that the boundary lines are difficult to draw but we must make a start somewhere if we are truly to become a developed society that is torelant and respectful of everyone. Let me share the sentiments of the Wolfenden Committee in England that recommended the decriminalization of certain types of private conduct,
“Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality”.
The conduct which Anwar stands accused is practised by many people in our country UNLESS we are hypocritical enough to say there are no homosexuals or transvestites in Malaysia. Should they all be going to jail for six years.
The fundamental question is this, how does that affect an individuals ability to govern the country. I am not for one moment suggesting that Anwar is guilty of the offence for which he stands accused – all I am saying is that it is irrelevant.
If indeed Saiful was sodomized, what was the neccessity to meet with the DPM and all manner of people before acting on it. He should have just gone to a police station on the very day he was sodomized and made a report.
This much is clear – the report and the accusations were orchestrated to achieve the best political mileage posibble and to stop Anwar in his tracks.