Malaysia’s Attorney-General, Abdul Gani Patail (pictured left), says the complainant in the case against the opposition leader Anwar Ibrahim was not prosecuted for consensual anal sex with Anwar because he was a witness against Anwar in a case similar to corruption.

On Tuesday, Malaysia’s federal court upheld a ruling by the Court of Appeal last year, which found Anwar guilty of sodomising his former aide Saiful Bukhari Azlan in 2008, and sentenced the former deputy prime minister to five years in prison.

The verdict has been heavily criticised both locally and internationally. Amnesty International said the decision to jail Anwar was an oppressive ruling that would have a “chilling effect” on freedom of expression in Malaysia.

Anwar (pictured left) says the case against him was fabricated by his political enemies. He has previously spent two years in political detention and six years in prison after an earlier conviction on corruption and sodomy charges.

Gani said in a statement yesterday that in almost all corruption cases, the receiver is charged while the giver is used as a witness against the accused.

“The Attorney General’s Chambers emphasises that the case against Dato’ Seri Anwar Ibrahim is more akin to that of corruption cases,” Gani said.

The president of Malaysia’s Bar Council, Christopher Leong, had said there were “glaring anomalies” in the case against Anwar, which fuelled the perception that the opposition leader had been persecuted. These anomalies, he said, included the failure to charge Saiful.

Leong (pictured left) explained that Anwar was charged under Section 377B of the Penal Code, read together with Section 377A. Section 377B provides that whosoever voluntarily commits the acts described in Section 377A shall be punished with imprisonment for a term that may extend to twenty years, and shall also be liable to whipping.

“It is notable that Anwar was not charged under Section 377C of the Penal Code for forced sodomy or sodomy rape, although there may appear to have been some allegation of coercion made in the proceedings,” Leong said.

Gani said the public prosecutor opted to charge Anwar under section 377B, which has no minimum term of imprisonment. “This was purely based on the prosecutorial discretion sanctioned by Article 145(3) of the Federal Constitution.”

MP Lim Lip Eng from the opposition Democratic Action Party (DAP) has filed a police report, calling for an investigation into Sailful’s involvement in the act of sodomy. “The highest court in Malaysia has ruled on Tuesday that sodomy, a crime in our country, took place between Anwar and Saiful,” he told Channel NewsAsia. “Shouldn’t both parties in this criminal act be punished?”

Gani said it was “highly inappropriate” and in fact misleading for Leong to suggest that Anwar should have more properly been charged “under section 377C of the Penal Code for forced sodomy or sodomy rape”, because “there may appear to have been some allegation of coercion made in the proceedings”.

He added: “In point of fact it appears that the President of the Malaysian Bar instead is suggesting that he should be charged under section 377C which is a more serious offence and which would have exposed Dato’ Seri Anwar Ibrahim to a minimum sentence of imprisonment of five years and a maximum of twenty years.”

Gani said that the perception of certain parties that Anwar had been charged and convicted for a “victimless offence” was clearly “insupportable”. Saiful was the person who suffered, Gani insisted. “He provided sworn testimony to a court of law of the acts he suffered which are a matter of judicial record.”

Gani added: “It must be remembered that all three courts found Mohd Saiful Bukhari Azlan to be a credible witness and there was nothing inherently improbable about his story.”

The Attorney General said that, from 2010 to 2014 , 171 cases had been brought under Section 377B and 489 cases under Section 377C. “While the number of cases charged under section 377B is less than those charged under section 377C, the figures categorically demonstrate that section 377B is not a ‘rarely used’ provision as suggested by certain parties.”

Gani added: “The Attorney General’s Chambers wishes to further emphasise that throughout the six and a half years long of proceedings, the honourable Datuk Seri Anwar Ibrahim was accorded the right to a fair trial and afforded every opportunity to exercise his constitutional rights before the courts of law.”

Judgement criticised at home and abroad

The US, Australia, Canada, Britain, and Germany are among the countries that have raised concerns about the jailing of Anwar.

Spokesman for the UN High Commissioner for Human Rights, Rupert Colville, said the UNHCR was disappointed by the federal court ruling. “There are allegations that this case has been politically motivated and the trial marred by violations of due process rights in relation to the opportunities provided to the defence, raising concerns about the fairness of the judicial process.”

International Federation for Human Rights (FIDH) president, Karim Lahidji, said the verdict was the “disgraceful conclusion of a relentless judicial campaign against Anwar Ibrahim”.

Malaysia’s judiciary had failed to demonstrate its independence from the executive branch in a trial that had clear political motivations, Lahidji said.

In his statement about the case, Amnesty International’s Asia Pacific director, Richard Bennett, said: “This is a deplorable judgment, and just the latest chapter in the Malaysian authorities’ relentless attempts to silence government critics. The ‘sodomy’ charges against Anwar Ibrahim have always been politically motivated, and he should be released immediately.

“The Malaysian judiciary missed an opportunity to demonstrate its independence from political interference. We consider Anwar Ibrahim to be a prisoner of conscience – jailed solely for peacefully exercising his right to freedom of expression.

“The attempts to silence the opposition leader come amidst a wider crackdown on dissenting voices in Malaysia. The authorities have over the past year made increasing use of the draconian Sedition Act to target journalists, politicians and academics they find inconvenient. This practice must end immediately.”

Anwar’s children have launched a “March to Freedom” campaign, there are nightly vigils outside the Sungai Buloh prison where Anwar is being held, and politicians are focused on who will now lead the Pakatan Rakyat (People’s Pact) coalition, and who will contest the parliamentary seat that Anwar will shortly be disqualified from holding. (Under Malaysia’s constitution, the disqualification takes effect 14 days after conviction.)

Full statement from the Attorney General

1. On 10 February 2015, the Federal Court dismissed Dato’ Seri Anwar Ibrahim’s appeal and affirmed his conviction and sentence of five years imprisonment imposed by the Court of Appeal against YBhg Dato’ Seri Anwar Ibrahim for an offence under section 377B of the Penal Code.

2. Although the written grounds of judgement are not yet available, various parties have questioned the merits of the Federal Court’s decision and raised various legal issues to undermine the prosecution of Dato’ Seri Anwar Ibrahim as well as his conviction.

Charge under section 377B of the Penal Code

3. Dato’ Seri Anwar Ibrahim was charged for an offence under section 377B of the Penal Code, which carries a sentence of imprisonment of up to twenty years and whipping, based on the evidence obtained through the police investigation. The Penal Code provides two instances where a person can be charged for sodomy. One is section 377B where “with or without consent” is not an ingredient. The other is section 377C where the act of sodomy is committed without consent or against the will of the other person. The other distinguishing feature is the punishment where the law imposes a minimum sentence of five years under section 377C.

4. This is in line with section 377 of the Indian Penal Code which criminalizes unnatural offences where, whether or not there is consent to the carnal intercourse against the order of nature, an offence would be committed.

5. The Public Prosecutor however, opted to charge Dato’ Seri Anwar Ibrahim under section 377B which has no minimum term of imprisonment.

This was purely based on the prosecutorial discretion sanctioned by Article 145(3) of the Federal Constitution. Such exercise of prosecutorial discretion is not unknown to law as previously in cases involving possession of firearms simpliciter, for example in Lee Weng Sang v Public Prosecutor [1978] 1 MLJ 168, the Federal Court held that Public Prosecutor can choose to prefer a charge under the then section 57 of the Internal Security Act 1960 which carried a death penalty or section 8 of the Firearms (Increased Penalty) Act 1971 which carries a maximum of fourteen years imprisonment and whipping of not less than six strokes. The Public Prosecutor in exercising such discretion will have regard to the facts and circumstances of each case and certainly not at his whims and fancies.

6. Therefore it is highly inappropriate and in fact misleading for the President of the Malaysian Bar to suggest in his Press Release dated 11 February 2015 that Dato’ Seri Anwar Ibrahim should have more properly been charged “under section 377C of the Penal Code for forced sodomy or sodomy rape”, because “there may appear to have been some allegation of coercion made in the proceedings”. In point of fact it appears that the President of the Malaysian Bar instead is suggesting that he should be charged under section 377C which is a more serious offence and which would have exposed Dato’ Seri Anwar Ibrahim to a minimum sentence of imprisonment of five years and a maximum of twenty years.

Victimless offence

7. Further, the perception of certain parties that Dato’ Seri Anwar Ibrahim has been charged and convicted for a “victimless offence” is clearly insupportable. Mohd Saiful Bukhari Azlan was the person who suffered. He provided sworn testimony to a court of law of the acts he suffered which are a matter of judicial record.

8. It must be remembered that all three courts found Mohd Saiful Bukhari Azlan to be a credible witness and there was nothing inherently improbable about his story.

Why the complainant was not charged for abetment

9. Another question that has been raised is why the complainant, Mohd Saiful Bukhari Azlan, “was not charged for abetment under sections 377A and 377B, read together with section 109 of the Penal Code”. The Attorney General’s Chambers emphasizes that the case against Dato’ Seri Anwar Ibrahim is more akin to that of corruption cases. In almost all corruption cases the receiver is charged while the giver is used as a witness against
him.

Prosecution under a rarely used provision of the Penal Code

10. Based on the Attorney General’s Chambers and Royal Malaysia Police statistics, 34 cases where charged under section 377B in 2014, 28 cases in 2013, 20 cases in 2012, 34 cases in 2011 and 55 cases in 2010.

This brings the total number of section 377B cases to 171 in a five-year period.

11. In relation to section 377C, there were 121 cases in 2014, 98 cases in 2013, 82 cases in 2012, 83 cases in 2011 and 105 cases in 2010. This then brings the total number of cases to 489 cases in a five-year period.

12. Therefore while the number of cases charged under section 377B is less than those charged under section 377C, the figures categorically demonstrate that section 377B is not a “rarely used” provision as suggested by certain parties.

Conclusion

13. The Attorney General’s Chambers reiterates that the proper forum for the determination of factual and legal issues pending before a court should be the court itself. Therefore the decision of the Federal Court, after having gone through a thorough trial and appeal process in accordance with due process of law, should be the final arbiter of this case.

14. The Attorney General’s Chambers wishes to further emphasise that throughout the six and a half years long of proceedings, YBhg. Dato’ Seri Anwar Ibrahim was accorded the right to a fair trial and afforded every opportunity to exercise his constitutional rights before the courts of law.

YBhg Dato’ Seri Anwar Ibrahim had also been given every opening to exhaust avenues of review and appeal available to him as provided by the law.

Tan Sri Abdul Gani Patail, Attorney General, 12 February 2015.

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