Let the punishment fit the crime

Even if the act of sodomy was committed, it was consensual. This fact must not escape the judge, says Zaid Ibrahim.

COMMENT

By Zaid Ibrahim

Sodomy is a criminal offence in Malaysia but so are other sexual acts that are more “creative” than the usual horizontal position.

Offences “against the order of nature” make us blush because many of us probably partake in some of them. These are offences because the British made them offences 160 years ago, and although England and other countries have since abolished such laws, we still have them in our Penal Code.

In some countries long ago, it was a crime for a commoner to look upon the King, and for a woman to walk unescorted by a male relative. In Saudi Arabia it is still an offence for a woman to drive.

There is also a vast collection of very strange—if rarely enforced—laws: for example, commoners are prohibited from dying in the Palace of Westminster (i.e. the UK Parliament) as they would be eligible for a state funeral. Any actual deaths in Parliament are legally recorded as having occurred at a nearby hospital.

In Florida, it is illegal for an unmarried woman to parachute on a Sunday, and in France it is unlawful to name a pig “Napoleon”—the list goes on.

Just because society creates offences for reasons of its own does not mean that the person committing the offence is undesirable, bad or a danger to others. Sometimes offences are created because the acts are frowned upon by religion.

However, in a democracy we should not create offences just because acts are considered sinful.

Offences can be justified only on the grounds of providing for the safety and protection of the people, or as deterrents. The moral issue is not for the government to deal with. Sins are for God to punish, not the government.

Whatever the verdict in Anwar Ibrahim’s sodomy case next week, I hope he will be treated fairly. If there is a conviction and the court is disposed to hand down a custodial sentence, let it be minimal. Even if the act of sodomy was committed, it was consensual. This fact must not escape the judge.

Fairness is for everyone

Consensual sexual acts are not crimes in most countries and we should take cognisance of this.

Some of us may have a deep sense of revulsion and disapproval of such acts, but this disapproval does not justify punishing those who are different from us.

Anwar Ibrahim is not an ordinary Malaysian. He is the Leader of the Opposition. The crime that he had been charged with has nothing to do with his position as a political leader. He has the support of millions in the country.

It is therefore important for the country that the verdict is not seen to be too severe or to be politically influenced.

Fairness is for everyone, including someone we disapprove of, and any punishment that is perceived as completely disproportionate to the crime will bring political instability, not to mention shame in the eyes of the international community.

The exposés of his sexual trysts have been distributed far and wide, and almost everyone already has an opinion of Anwar Ibrahim. Some may believe and some may not. Others don’t care.

Anwar has to live with all of this, and there is no need for him to endure a long custodial sentence for what is essentially a moral offence—Penal Code notwithstanding.

There is no need for him to have as further punishment a legal penalty that does not fit the crime.

Zaid Ibrahim is the Kita president.