KUALA LUMPUR: Opposition Leader Datuk Seri Anwar Ibrahim, who was convicted and sentenced to five years’ jail for sodomising his former aide was charged under section 377B of the Penal Code, a less serious offence than section 377C.
Attorney-General Tan Sri Abdul Gani Patail said the Penal Code provided two instances where a person could be charged for sodomy; section 377B where “with or without consent” is not an ingredient, and 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,” he said in a statement here tonight.
Section 377B has no minimum term of imprisonment, he said.
He said the public prosecutor opted to charge Anwar under section 377B and that was purely based on the prosecutional discretion sanctioned by Article 145(3) of the Federal Constitution.
“The public prosecutor is exercising such discretion will have regard to the facts and circumstances of each case and certainly not at his whims and fancies,” added Abdul Gani.
He said as such, it was inappropriate for Bar Council president Christopher Leong to say that the opposition leader should have more properly been charged under section 377C.
“In point of fact, it appears that the president of the Malaysian Bar instead, is suggesting that he (Anwar) should be charged under section 377C which is a more serious offence and which would have exposed Anwar Ibrahim to a minimum sentence of five years and a maximum of 20,” he said.
On Tuesday, the Federal Court upheld the Court of Appeal judgement to sentence Anwar to five years jail for sodomising Mohd Saiful Bukhari Azlan at a condominium in Bukit Damansara in 2008.
The attorney-general in the statement also clarified that the perception of certain parties that Anwar had been charged and convicted for a ‘victimless offence’ was 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 matter of judicial record,” he said.
On why Mohd Saiful was not charged for abetment, Abdul Gani explained that the case was akin to that of corruption, where in almost all corruption cases, receiver was charged while the giver was used as a witness against him.
He also denied that the provision 377B of the Penal Code, under which Anwar was charged, was a rarely used provision.
He said based on the attorney-general’s chambers and police statistics, a total of 171 cases were charged under the provision from 2010 to 2014. Last year, 34 of the cases were charged.
Meanwhile, a total of 489 cases were charged under section 337C in the past five years.
Abdul Gani said Anwar was also accorded the right to a fair trial and afforded every opportunity to exercise his constitutional rights before the court of law throughout the six-and-a-half year-long proceedings. — BERNAMA