A case of contempt of court?

Hence, before his appeal date dawns on us, let us ask ourselves – was Anwar convicted on an archaic law? If not, why are 42 other nations in this world still practicing that law with the same section number?

Iskandar Mohamad

In the days ahead, skewed views of many current issues such as Budget 2014 and events related to Anwar Ibrahim’s Sodomy II case may fetter many Malaysians. On October 14, the court will hear the opposition leader’s appeal to disqualify Umno lawyer Tan Sri Muhammad Shafee Abdullah from being part of the prosecution team. A fortnight later, the Federal Court has fixed October 28-29 to hear Anwar Ibrahim’s appeal to set aside his conviction.

In January 2012, Lim Chee Wee (President of Malaysian Bar Council then) said, “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.”

In  March 2014, Christopher Leong (President of Malaysian Bar Council) echoed Lim Chee Wee’s words here where he also openly expressed that “The Malaysian Bar is deeply troubled by the conviction and sentence to five years’ imprisonment of Dato’ Seri Anwar Ibrahim by the Court of Appeal, for what was essentially consensual sex between two adults.”

Christopher Leong also said, “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.”

Such views expressed so openly, endorsed and written by the President of the Malaysian Bar Council, certainly raises eyebrows because it reeks of behaviour that opposes or defies the authority, justice, and dignity of the court.

Is this a case of contempt of court for these comments were made outside the court, seemingly to belittle, mock, obstruct, interrupt, or degrade the court and its proceedings? Any such misconduct impairs and threatens the fair and efficient administration of justice. Those trained in the law and practicing law should know better than to raise questions that cast aspersions on court judgements, especially with regard to such a controversial political figure who, for decades, blazed through the corridors of Malaysian history. A crime is a crime and it seems like curtain call for him this time.

Christopher Leong may have forgotten it was because Anwar allegedly committed those acts with two different partners. Consider this – if after a serial rapist serves sentence after being convicted of his first rape offense, and commits another rape years later, his preceding first conviction does not absolve him of his second crime.

An overview of the Penal Code, especially Section 377, is important to ward of any distorted view of the case. Note the following:

1.       Act 574 Penal Code was first enacted in 1936 and then revised in 1997.

2.       In October 2013, the Dewan Rakyat passed amendments to the Penal Code, with Clauses 5 and 53 withdrawn.

3.       Section 377 of the penal code in 42 former British colonies criminalises anal sex between men and other homosexual acts. The provision was introduced by British colonial authorities in the British Raj as section 377 of the Indian Penal Code, and was used as the model for sodomy laws in many other British colonies, in many cases with the same section number.

4.       Section 377 is in line with Islamic teachings (the story of Lut in the Qu’ran) and biblical teachings. Even the words carnal intercourse against the order of nature was derived from the words of Sir Edward Coke.

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

6.       In reality, the Penal Code was tabled before the Special Select Committee of Parliament and all sections of the Code were opened for public examination and review. Special emphasis was placed on some sections of the Code, which were topical at that time.

Sections 377A and 377B were given special treatment and emphasis, because the issue of and debates on consensual sex in whatever form and style with particular reference to homosexuality, and same-sex marriage were at its height in the Western world, especially in the US, Europe, Canada and Australia.

The Select Committee asked not once, but many times to all and every member of the public — which include several senior members of the Malaysian Bar, Advocate Association of Sarawak, and Sabah, who appeared before it — to give their input.

They either remained silent, mumbled, or made excuses and some said, “We have to protect our Asian values.” Why are people complaining now? Why didn’t concerned parties say outrightly to the committee that they “want to do away with the supposedly ‘archaic‘ provision of the Act”? The truth is NONE of them ever did. Why are they making noise now? The reason is clear – to lobby for and to protect the interest and future of Anwar Ibrahim.

We cannot deny that, realistically, there are similar cases whereby the commission of an offence between two consenting adults doing something behind a closed door happens too often.

In this case, however, since one of them made the report, the police had no choice but to carry out an investigation. Bear in mind that once the investigation has been carried out and credible evidence is obtained, the Attorney-General cannot ignore it but to bring the matter, as he should, before the court of justice, who would in turn weigh the evidence and decided accordingly. Otherwise, the whole of the country’s judicial system is condemned into conspiracy to trample on the law they were sworn to protect and uphold. 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?

Even under such circumstances, why are some quarters blaming the government and the authorities for carrying out their duties in accordance with the law? Many think they know better for, when law is enforced, they hurl brickbats and, when it is not, they hurl brickbats. 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.

Hence, before his appeal date dawns on us, let us ask ourselves – was Anwar convicted on an archaic law? If not, why are 42 other nations in this world still practicing that law with the same section number?