We make reference to the Press Release of the President of the Malaysian Bar, Christopher Leong of the Bar Council on February 11, 2015, as well as the Press Release of the International Commission of Jurists on February 10, 2015, both of which concern the affirmation by the Federal Court of Malaysia on February 10 of the Court of Appeal decision on March 8, 2014, to convict Datuk Seri Anwar Ibrahim of sodomy pursuant to Section 377B of the Penal Code of Malaysia.
We repudiate, as well as condemn, the said statements, both of which are made without due regard for the law in force concerning sodomy within Malaysia, the sovereign right of Malaysia to criminalise acts of sodomy as being contrary to the nature of Malaysia as non-secular, Muslim majority state and against the shared values of the majority of the Malaysian population as well as being an affront to the criminal justice system, in particular the administration thereof, in Malaysia.
With respect to the Press Release of the Malaysian Bar, we note that although the statement has admitted that the Bar Council has yet to peruse the extensive written grounds of judgment of the Federal Court concerning the conviction and sentence of Anwar, it has nonetheless claimed that the decision of Their Lordships, the Federal Court Judges in the said criminal case to be surprising, and to insinuate that the same amounts to persecution, and not prosecution.
Such an insinuation, which is wholly without basis, damages the standing of the Malaysian legal profession. It is unprofessional and contravenes the idea that judges in any given case must be free to decide according to their own assessment of the facts before them. It also maligns the independent judiciary guaranteed by the Federal Constitution and applicable international legal instruments. Such an insinuation is also contrary to the spirit of the Legal Profession (Practice and Etiquette) Rules 1978, which is binding on members of the Bar.
The Bar Council’s statements are rendered all the more incompetent since they are made without perusal of the grounds of judgment and the reasoning of Their Lordships. They are made purely upon the various conjectures and assumptions made based on what is known about the case in the press.
Members of the Bar who sit in the Bar Council, most of whom have seniority beyond the average possessed by the majority of members, are rightly expected to know better. We accordingly urge the Bar Council to retract the said press release and reassess their position only upon having knowledge of the reasoning given by Their Lordships pursuant to the grounds of judgment given in respect of the case.
With respect to the press release of the International Commission of Jurists (ICJ), we note that the ICJ has, among others, expressed concern that “same-sex relations” are still an offence in Malaysia and that sodomy as a crime is incompatible with so-called international human rights law and standards in particular the including the right to dignity, equality before the law and equal protection of the law, non-discrimination, liberty and security of person, privacy, opinion and expression as well as association and peaceful assembly.
The ICJ holds that Malaysia’s concept of human rights is outdated and has urged that prosecutions for sodomy cease. We strongly condemn this as an unwarranted interference in the internal affairs of Malaysia and the sovereign right of Malaysia to determine for itself what constitutes crimes within its own borders. Sodomy is considered a heinous act by Islam which is the religion of the Malaysian state and is professed by a majority of the Malaysian population. Thus it is right that such an act remain illegal under Malaysian law.
Further, sodomy remains illegal not only in Malaysia but also in other nations such as India, whose Supreme Court has recently upheld the constitutionality of criminalising sodomy in Section 377 of its Penal Code, which is identical to the provision of Section 377B of the Penal Code in Malaysia.
With respect to the compatibility of such criminalisation with international human rights norms, it must be reminded that as an independent, sovereign nation, Malaysia is bound only by her Federal Constitution, and no rights guaranteed within her Constitution are violated by the existing penal provision on sodomy. Nor can penalising sodomy ever be taken to contravene the various rights to which ICJ alludes, not even in the context of applicable international human rights instruments such as the Universal Declaration of Human Rights 1948.
We accordingly call upon the ICJ to retract the statement and refrain from further comment upon the appropriateness or otherwise of crimes punishable under Malaysian law in the future.
* Azril Mohd Amin is the executive director of the Centre for Human Rights Research and Advocacy (CENTHRA), while Faidhur Rahman Abdul Hadi is the co-founder of Concerned Lawyers for Justice (CLJ).
* First published in the Malay Mail Online, 12 February 2015.