Based on developments so far relating to charge against Anwar, there are a few interesting anomalies.

For examples:

1. One would have thought that the charge preferred against Anwar would be under section 377C of Penal Code relating to sodomy in sense of anal rape. However as it turns out the charge formulated by AG’s chambers (Solicitor General) is that of sodomy on Saiful under section 337B of the Penal Code, which section 337B refers to consensual homosexual sex, not anal rape. [ 377B : “Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping” , key words being “voluntarily”]. Straightaway prosecution puts itself at disadvantage by reasons of 2 major discrepacies: (a) Saiful’s first complaint and report to police published by RPK in blog referred to sodomy “tiada kerelaan saya” (without consent) and (b) hospital reports at Puswari & KL Hospitals are likely supportive of sodomy haviong taken place.

2. Per Malaysiakini report filed by Andrew Ong and Rahmah Ghazali | Aug 6, 08 8:57pm – at a press conference after chairing the Barisan Nasional management committee meeting in Kuala Lumpur on same day, when the PM was asked by press ‘if Saiful would be charged for sodomy as well if the alleged sexual encounter was found to be consensual, Abdullah laughed and said that he was not competent to comment on law issues. “You better read your law. It depends on whether a rape took place, or not. I’m not a lawyer. I don’t want to get involved. We’ll see when the case goes to court,” he said.’ Implication of that statement is that if alleged sexual encounter was found to be consensual, then Saiful would be charged as well. Now the charge is 377B (voluntary & consensual sodomy, it raises question whether Saiful (chief witness for prosecution will be charged as well under 377B)!

3. One would also expect bail was to be denied so that Anwar could not campaign in Permatang Puah. However contrary to that prosecution did not opposed bail and judge SM Komathy (in contrast with Augustin Paul J) granted bail on Anwar’s personal bond of RM20,000 with him not being required to surrender his passport.

All these suggest that rank & file of government machinery don’t seem to be necessarily acting entirely in concert with what either top echelon says or otherwise would have been expected to be consistent with the political interests of top echelon. It looks as if within the BN govt and down rank and file, some may have evil motives heedless of good sense and justice but we cannot say all are united in nefarious motives : up to this stage, within limitations pf political pressures, I cannot say I am unhappy with what the the Solicitor General or judge SM Komathy has done in preferring a charge under 377B instead of the absurd 377C, not resisting application bail and giving Anwar a fighting chance.

The judge also set the case for mention on Sept 10 when it will be decided when hearing will begin – which will be way after Oct 2008.
In the premises Anwar has a reprieve to (i) contest and win Permatang Puah on 28th August and (ii) become Opposition Head with national footing and (iii) if Anwar were credible in what he said that he could effect a take over of the government on 16th September by aid of cropssovers, then this entire exercise of prosecuting him for consensual sodomy will be an exercise in futility in not only bolstering his popularity in the polls of 28th August but also not thwarting in any way his attempt to take over the government on 16th September, which if successful, question of continuing with sodomy charges does not arise!

In reply to AhPek’s question at 13:26.08, it would be valid to argue that Saiful – just like Dr Chuah Soi Lek – should equally be charged for consensual anal sex under 377B.

However such an argument is put forth not because it is a right thing to do : it is put forth only in the limited context as a counterpoint of argument against authorities’ selective prosecution of individuals whom those in power are inimical to, whilst sparing others they are friendly with.

This is because selective prosecution is an infringment of our constitutional right to equal protection of the law.

But other than using such an argument merely as an expedient counterpoint against selective prosecution, I would not wish anyone, whether Saiful, Anwar, Dr Chuah or anyone for that matter to be prosecuted for consensual sex, whether natural or unnatural.

And that is because I place greater importance in a person’s freedom and liberty than his or her basic biological activities, drawing a line only where there is harm inflicted unto others as in rape, which excludes all consensual expressions, private and not public flouted, causing emotional distress to the more prudish conservative and in some cases hypocritical amongst us who witness such activities.

Having said that, it is also a personal view. I make no attempt to foist upon others that this personal view is more right, advance or enlightened than those who would take a different view that we should not condone immoral sexual behaviour.

However, this much has to be further added. No matter what we think of a person – that he may actually be guilty of allegations made (whether maliciously or even honestly) against him – as long as those allegations will result in that person being punished by public odium and shame and even incarceration upon conviction, we should observe, in relation to him, at least the minimum standards of rule of law and legal rights (including presumption of innocence unless proven otherwise beyond reasonable doubt) to which person is entitled.

Translated, it means that if the evidence is not up to mark, we don’t persist to dig further to fish and canvass for more incriminating evidence, and if necessary to even fabricate evidence with the view of deliberately incriminating the person.

In short, to accord every person the basic rights in accordance to ordinary principles of human decency and fairness. That’s all I have to say.