Some 100 lawyers out of 15,500 members of the Bar have issued a statement calling for the resignation of the Bar Council president Christopher Leong over his remarks following the decision of the Federal Court to convict opposition leader Datuk Seri Anwar Ibrahim for sodomy and sentencing him to 5 years imprisonment. They have also urged the Attorney-General to cite the current Bar Council president and former presidents who issued similar statements for contempt of court if they fail to apologise and retract their allegedly offending statements.

According to these lawyers, the statement of the Bar Council president amounted to a serious contempt of court that brought the administration of justice and the court into public odium and disrepute; militated against the fundamental and statutory duties of the Bar; was a misinterpretation of the facts and the law; it did not represent the views of a majority of members of the Bar; it was unfair and unsubstantiated given that the Bar Council president admitted to not having read the judgment of the Federal Court prior to issuing his statement; and that it was akin to a trial of the judiciary by the media, which the legal profession abhors.

I must congratulate these members of the Bar for their statement being an excellent example of prose given the highly charged circumstances. Their statement also shows that the independence and integrity of the Bar and its members is still intact and flourishing while freedom of speech and expression are valued and treasured by all legal practitioners whatever their political or religious beliefs.

I have read the Legal Profession Act 1976 most notably section 42 which deals with the objects of the Bar and sections 56 and 57 of the Act that deal with the general and specific powers of the Bar Council but I am unable to find any provision in the Act that imposes a duty or obligation on the Bar Council to “protect the sanctity and integrity of the judicial system”.

Section 42 (1) (l) of the 1976 Act as quoted by the critics of the Bar Council reads: “to promote good relations and social intercourse amongst members and between members and other persons concerned in the administration of law and justice in Malaysia”. Silence is not an option when things are ill done. The Bar Council is not a social club where the desire to preserve goods relations and social intercourse with the bench must transcend the obligation to, “uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour” as provided for in section 42 (1) (a) of the Act.

No other professional body in Malaysia has been imposed with such an onerous obligation and duty which in my view is often a difficult and thankless task given the prevailing political, economic and social conditions in our country that revolve around the entrenched political incumbency of the ruling party, the superiority of race and the dominance of religion.

The statement of the Bar Council president must be read in the context of the decision of the Public Prosecutor to charge the accused under section 377A of the Penal Code read together with section 377B of the Code. The Federal Court held that consent was not required for a charge under section 377A unlike section 377C of the Code that deals with unnatural sex without consent which requires proof of a lack of consent and imposes a heavier sentence. Section 377C of the Code envisages a situation where the act of anal or oral sex is procured through the use of force, threats or intimidation. The complainant in Anwar’s case maintained throughout the trial that he did not consent to the acts of sodomy allegedly perpetrated by the accused on him and that he was afraid of the accused because of his dominant position as his employer and as a well known politician. Therefore, he was an unwilling or reluctant participant.

The Federal Court in acquitting the accused of a similar charge of sodomy under section 377A read together with section 377B of the Code in 2004 held as follows:

“Both the High Court and the Court of Appeal found that Azizan was not an accomplice. On this point too we are not going to repeat the law which has been stated by both the High Court and the Court of Appeal. Instead, we will focus on the facts.

The reason for his finding that Azizan was not an accomplice is to be found in this paragraph:

“In the instant case the evidence shows that Azizan was invited to visit Tivoli Villa by Sukma. Azizan went there to see Sukma's new apartment. He went there not with the intention of committing sodomy with both the accused. His actus reus alone is not sufficient to make him an accomplice, there must also be the intention on his part (see Ng Kok Lian's case). For reasons I therefore find that Azizan is not an accomplice”. (p. 366 of [2001] 3 CLJ 313).

The Court of Appeal added nothing to it in agreeing with the finding of the learned trial judge.

In our view, if the learned trial judge was looking for mens rea he should look at the surrounding circumstances. This is where evidence of similar facts becomes relevant. This is not a case of a person who was merely present at the time of the commission of the offence or participated in it only once. By his own evidence, he was sodomised 10 to 15 times at various places, including in the house of the first appellant over a number of years. He never lodged any police report. He never complained about it until he met Ummi in 1997. He did not leave the job immediately after he was sodomised the first time, we do not know when. Even after he left the job, he went back again to work for the first appellant's wife. Even after he left the second time, he continued to visit the appellant's house. He even went to the first appellant's office. When invited by the second appellant to go to Tivoli Villa, he went. He said he was surprised to see the first appellant there. Yet he stayed on. Signalled to go into the bedroom, he went in. There is no evidence of any protest. He followed whatever "instructions" given to him.

He said he submitted under fear and was scared of both the appellants. A person may allow himself to be sodomised under fear once or twice but certainly not 10 to 15 times over a number of years. He is not a child or an infirm. Even on this occasion, when he saw the first appellant there, he would have known of the possibility of the first appellant wanting to sodomise him again. Why did he not just go away? Instead, by a mere signal, he went into the bedroom, as if he knew what was expected of him. He did nothing to resist, in fact cooperated in the act. And, after the first appellant had finished and went to the bathroom, he remained in that "menungging" position. What was he waiting for in that position? Indeed the whole episode, by his own account, appears like a repetition of a familiar act in which each actor knows his part. And, after that he went back to the place again, twice and talked about the incident as "the first time" he was sodomised there, giving the impression that there was a second or third time. Are all these consistent with a person who had submitted under fear? We do not think so. Therefore, in our judgment Azizan is an accomplice, though he may be a reluctant one”.

The apex Court then went on to hold: “We have also found Azizan to be an accomplice. Therefore corroborative evidence of a convincing, cogent and irresistible character is required. While the testimonies of Dr. Mohd. Fadzil and Tun Haniff and the conduct of the first appellant confirm the appellants' involvement in homosexual activities, such evidence does not corroborate Azizan's story that he was sodomised by both the appellants at the place, time and date specified in the charge. In the absence of any corroborative evidence it is unsafe to convict the appellants on the evidence of an accomplice alone unless his evidence is unusually convincing or for some reason is of special weight which we find it is not. Furthermore, the offence being a sexual offence, in the circumstances that we have mentioned, it is also unsafe to convict on the evidence of Azizan alone” (see Dato’ Seri Anwar Ibrahim v. Public Prosecutor and another Appeal [2004] 3 CLJ 737).

The criticism of the Bar Council president in the present case was directed at the charge. If the sex was consensual as the charge under section 377A of the Code implies, then the complainant given the factual matrix of the case could have been an accomplice and may have abetted in the commission of the offence. As such the complainant ought to have also been charged under section 377A read together with section 109 of the Code. However, since the prosecution maintained that the complainant was forced to have anal sex with the accused as confirmed by the testimony of the complainant himself, then the charge ought to have been under section 377C of the Code. But this was not done presumably because the prosecution was unable to prove the lack of consent.

The evidence of the victim becomes suspect because he claims that he did not consent but yet the accused was charged under section 377A of the Code which deals with consensual anal or oral sex. It is easy to call the complainant a victim but was he a victim after the last incident of purportedly non-consensual anal sex with the accused or after the 8 or 9 times previously when he was allegedly sodomised by the accused but did nothing after those incidents but continued to remain in the employment of the accused and had a close personal relationship with him, even to the extent of carrying the lubricant called KY jelly on his person at times in anticipation of a call from the accused to indulge in his sexual perversions?

For example, when one has regular consensual anal or oral sex with your spouse or girlfriend, which by definition is an offence under section 377A of the Code since there is penetration or insertion of the penis into the anus or mouth, when is the offence committed? Is it when the spouse or girlfriend suddenly decides to call it sodomy or sexual assault for whatever reason or motive because she now says there was no consent and she was forced into it? How does one establish the alleged crime under section 377A of the Code if the spouse or girlfriend participated and abetted in the offence all the while until her sudden and unexpected moral conversion?

The Bar Council president did not say that the Federal Court had persecuted the accused or that the court was complicit in any conspiracy to destroy the reputation and political career of the accused. Neither did he say that there was bias, deception or fraud on the part of the court in arriving at its judgment.

Therefore there is no contempt of court if one does not intend to interfere with the administration of justice or to scandalise the court. But it is up to the Attorney-General as the guardian of the public interest to decide if contempt proceedings ought to be initiated.

In a similar vein, these concerned members of the Bar should also be urging the Attorney-General to consider moving contempt proceedings against the lead prosecutor in the case appointed on a fiat which expired after the judgment of the Federal Court, for making extra-judicial and unwarranted comments and statements about the accused to the media and at public forums including the disclosure of evidence given in camera during the trial. This sort of conduct is highly improper and unfair to the parties involved and it is simply not done especially after a guilty verdict is secured.

If the victim was a consistent and credible witness throughout the trial because of the shame he felt for himself and his family and was therefore brave enough to testify as to the alleged sexual misdeeds of the accused, given that sodomy is viewed as a grave sin amongst Muslims and is morally repugnant, it does not help the reputation and social standing of the victim, if the lead prosecutor decides to disclose the evidence given by the victim in camera to the public in order to justify the guilt of the accused despite having secured a conviction against him. What happened to the rights of the victim and his family?

And what next, do we condone lawyers making public disclosure of privileged information obtained before or during a trial or in the course of negotiations between the parties?

The Bar Council is entitled to its views on the judgment of the Federal Court. The criticism of the decision must be done in an objective, temperate and courteous manner and not be motivated by anger or hate to the point that baseless and scurrilous allegations are made against the court and the bench. The Bar Council’s statement even if unpalatable to some does not breach any of the rules of conduct, ethics and fair comment.

To say that the president does not represent the views of the Bar is misconceived. The Bar Council is elected by the members and even state representatives to the Bar Council are elected by the respective state Bar Committee members.

If only less than 10% of the members bother to return their ballot papers to the Bar Council each year when the council members are elected, is the Bar Council to be blamed? Those who are loudest in their criticism of the perceived democratic deficit in the conduct of elections and meetings of the Bar ought to first take the trouble to return their ballot papers during an election and secondly make an effort to attend meetings of the Bar if they want to articulate their views and influence the members to support their position on various issues affecting the Bar and the administration of justice.

If the quorum at the Bar meetings generally do not exceed 1,500 members, which in itself is the highest for any professional body in Malaysia, why blame the Bar Council for the indifference and apathy of the members?

Even having direct elections is not going to solve the problem because voting cannot be made compulsory without offending the provisions in the Federal Constitution that deal with freedom of expression and freedom of association. The same applies to mandatory attendance at the Bar meetings.

The Bar Council has always been open to criticism, scrutiny and condemnation for its position on various issues that relate to the rule of law and the administration of justice in this country. It has an admirable reputation and standing both at home and abroad that has earned it the respect and ear of governments and international organisations. The Bar’s finest hour being in 1988 when it defended the judiciary from the unrelenting and destructive attacks and machinations of the executive.

To my knowledge, the Bar Council has never been influenced by personal prejudices, self-interests, political or religious beliefs when making public statements. Nor does the Council conduct itself like an appendage to the executive, the legislature or the judiciary when it comes to matters having to do with justice, the law and fairness. It does not have members who behave like civil servants who are more concerned about their standing in society, titles and pensions. Neither do its members seek lucrative appointments to government-linked or investment companies or corporatised statutory bodies after they have served on the Council or retire from practice. Appointments to the bench are not a right but a privilege.

It is unfair to label the Bar Council as a political animal just because it takes positions opposite to the ruling party and the government. Such an uncalled for and unwarranted statement should not be coming out of the mouth of a person who is by far the greatest political animal that the Bar has produced in recent times.

To these detractors of the Bar Council if you are unhappy with the direction and attitude of the Bar Council on matters of national and public interest, attend the next general meeting of the Bar to make known your position or if you cannot wait until then just invoke section 65 (2) of the Legal Profession Act to requisition an extraordinary meeting of the Bar and move a motion of censure against the president.

This group does not represent the majority of the members of the Bar and like in the past the Bar will rise to the occasion if there are attempts from within and without to subvert and stifle the independence and integrity of the Bar Council.

* Gerard Lourdesamy reads The Malaysian Insider.

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