KUALA LUMPUR, Feb 13, 2015:

Attorney-General Tan Sri Abdul Gani Patail has clarified that the perception of certain parties that Opposition leader Datuk Seri Anwar Ibrahim 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 is a matter of judicial record.”

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, the receiver was charged while the giver was used as a witness against the former.

In the statement, Abdul Gani also said Anwar, 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.

Abdul Gani said the Penal Code provided two instances where a person could be charged for sodomy.

He said under section 377B, “with or without consent” was not an ingredient while under section 377C, the act of sodomy should have been 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 last night.

Section 377B had 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 in 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 been more properly 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 to a minimum sentence of five years and a maximum of 20.”

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.

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.

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