Monday 10 March 2014

Badan Peguam Malaysia Respon Keputusan Kes Fitnah 2

Press Release | Conviction and Sentence of Dato’ Seri Anwar Ibrahim for Sodomy II: Justice is Not Only a Fact to be Established; It Must Also be Seen to be So Established

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.

Dato’ Seri Anwar Ibrahim was convicted and sentenced under section 377B, read with section 377A, of the Penal Code.

Section 377A of the Penal Code criminalises sodomy and oral sex (fellatio).  Section 377B provides that whosoever voluntarily commits the acts described in section 377A shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.  These provisions make no distinction between heterosexual and homosexual consensual sexual acts, and are thus applicable to both.

A law is only good and just if it is consistently and equally applied and enforced.  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.

The charge against Dato’ Seri Anwar Ibrahim is based on an archaic provision of the Penal Code, and should never have been brought.  The case has unnecessarily taken up judicial time and public funds, and has muddied the waters of our justice system. 

The Malaysian Bar also has grave misgivings with respect to the manner and timing in which the appeal was handled.  In particular, we are shocked by the manner in which mitigation and sentencing proceeded.

The Malaysian Bar makes no comment at present as to the grounds for the reversal by the Court of Appeal of the acquittal by the High Court in January 2012 of Dato’ Seri Anwar Ibrahim (“Respondent/Defendant”), and his present conviction and sentence by the Court of Appeal, as no written substantive grounds have been proffered as yet, save to say that there appears to be doubt and reservations as to the integrity of the DNA evidence in the case.

However, there are several aspects of this case that raise questions or concerns:

(1) The haste with which the appeal proceeded in the Court of Appeal.  No doubt the appeal had been pending since about July last year, but time had been taken with intervening applications on several issues and appeals arising therefrom.  It appears that the Respondent/Defendant had been notified on 27 February 2014 that the substantive appeal was to be heard on 6 and 7 March, thus providing his legal counsel Karpal Singh with only seven days’ notice to prepare for a criminal appeal arising from a lengthy trial that had taken many weeks and involved about 32 witnesses, including expert evidence;

(2) This was despite counsel for the Respondent/Defendant having informed the court that he was not available on those dates, as he was scheduled for other cases in court;

(3) It appears that about two weeks before the appeal was heard a registrar from the registry of the Court of Appeal had informed the office of the Respondent/Defendant’s counsel to reserve 7 to 10 April 2014 as the proposed hearing dates for the appeal.  The Respondent/Defendant’s counsel apparently agreed to these dates;

(4) It appears that these proposed dates when the Respondent/Defendant’s counsel was available were subsequently abandoned and replaced with much earlier dates;

(5) If this is true, then questions arise in the mind of the public as to why the Court of Appeal brought forward the appeal to be heard, when the originally contemplated dates in early April had already been agreed to by the Respondent/Defendant, and would have provided the Respondent/Defendant, facing a possible sentence of 20 years’ imprisonment, more time to prepare for the appeal;

(6) The appeal was heard on 6 and 7 March 2014.  It is reported that each day’s proceedings carried into the early hours of the evening, ie between 6:00 pm to 7:00 pm.  Although this is not unheard of, it is nevertheless rare;

(7) It is not uncommon for an appellate court to reserve judgment for a few days or months before handing down a decision, particularly where the proceedings in the trial court have been lengthy, the evidence substantial and the issues weighty;

(8) In this instance, the Court of Appeal had, at the conclusion of submissions by the parties on 7 March 2014, taken approximately 90 minutes to consider the matter, and then rendered a unanimous decision in reversing the acquittal by the High Court and finding the Respondent/Defendant guilty, at approximately 5:00 pm the same day;

(9) 5:00 pm is when the court usually adjourns for the day.  On this occasion, the Court of Appeal and the prosecution insisted on proceeding with hearing mitigation and sentencing;

(10) The Respondent/Defendant’s counsel requested an adjournment until the following week, beginning 10 March 2014, to address the court on mitigation and sentencing, and to obtain a medical report concerning the Respondent/Defendant’s medical condition, which would be relevant in considering the sentence to be imposed.  The Court of Appeal refused this request, and instead gave counsel one hour to prepare for mitigation and sentencing;

(11) Upon reconvening after about one hour’s recess, the Court of Appeal and the prosecution accepted counsel’s contention that the Respondent/Defendant suffers from medical conditions such as back pains, high blood pressure, and a heart ailment.  They accepted that these were relevant to sentencing, but refused to allow time for a medical report to be prepared and provided to the court.

(12) The Court of Appeal had thus denied itself relevant medical information pertaining to the particulars or peculiarities (if any), and extent of, the Respondent/Defendant’s medical condition before considering the appropriate sentence to be imposed; and

(13) The Court of Appeal pronounced a sentence of five years’ imprisonment, and the proceedings concluded at approximately 7:00 pm.

These matters raise many questions, cause much speculation, and lend to the perception that justice may have been hijacked.  

The questions to be answered, in the mind of the public, are thus, “Was the cause of justice best served by the manner and timing in which this appeal was handled?” and, “Was the administration of justice compromised or interfered with?”

The sanctity of the administration of justice and the independence of the Judiciary are intertwined, and essential for upholding the rule of law and instilling public confidence.  Justice and independence are not only facts to be established; it is imperative that they are seen to be so established.

It is heart-rending, for those who sacrifice and work hard in good faith to protect and defend the administration of justice, and to maintain and promote the independence of the Judiciary, when public confidence in these two precepts may be shaken or in jeopardy.

Christopher Leong
Malaysian Bar

9 March 2014