SUKMA DARMAWAN SASMITAAT MADJA, who was detained for 12 days,  and MUNAWAR AHMAD ANESS, who was detained under Section 73(1) of the Internal Security Act (ISA), were suddenly brought to two different Sessions Court in Kuala Lumpur, charged, convicted and sentenced on 19.9.98 for the offence of outrages on decency under Section 377D Penal Code, which carries a maximum sentence of 2 years imprisonment. Both of them pleaded guilty and were sentenced to six months imprisonment..

WHERE DID THE "LAWYERS" COME FROM?

Normally, when a person is arrested and detained by the police, it is the family of the detainees that appoint the lawyers because the detainee himself has no opportunity to do so. were denied access to their family members and the lawyers appointed by their respective
families. In these cases, however, suddenly the two are brought to court and a lawyer is already representing. When and how did they appoint the said lawyers? Were these lawyers his friends, or were they his lawyers before?

After they were sentenced, both Sukma and Munawar were whisked off by the police. To date, I believe, that the family and their lawyers have still not had access to the two..

WHY DID THEY PLEAD GUILTY?

The charge of sodomy is a difficult charge for the prosecution to prove, and it is usual that one will claim trial rather than plead guilty. So, why did the two after being arrested and detained, without access to their families or the lawyers appointed by their respective families, plead guilty on the said date?

The Star (20/9/98) reports that Munawar "was seen trembling when the facts of the case was read out to him.  Although one of the court police officers passed Munawar a jacket, he continued shaking. During mitigation, Munawar asked the judge Lim Yee Lan to allow him to go to
the toilet." The Star report also said that after shouting at the lawyer his family had appointed had left, Munawar was heard saying "No, no, he caught me by surprise, I didn't ask him to come." (who was he speaking to). What was the reason for Munawar's behavior? Was it because his conscience was disturbing him because he had betrayed a friend by telling lies, or was it because of sins of sodomy that he had committed? Were they forced into making the said confessions and/or admiting to the charge and facts of the case..

CHARGED BASED ON A UNVERIFIED STATEMENT?

Normally, persons will be charged in court after the police has completed its investigation. Note that the police has the power to require the attendance of a person, who may or has information relating to the   said investigation. Here, what is odd is that the police did
not even call in and/or question the Anwar, who was the alleged "accomplice" in this crime, and who was named in the said two charges.. Did the investigating officers visit the site of the alleged offence to verify the said confessions? Since there is no mention of this, it can
be implied that they did not..

This new development in our courts would mean that in the future, if a person were to go to the police and confess "I had been sodomized by Mr..B", the person will be automatically be charged with the offence under section 377D. Surely the police has the duty to investigate the said
allegations and  to ensure that it is not a false confession. Surely Mr..B should have been called in, at the very least to get a statement from him. Surely, the facts of the case had to be verified. And after investigations, if the person had made a false report or statement to
the police, the said person could be charged with an offence..

WHY WAS ANWAR NOT CHARGED TOGETHER?

When two persons are involved in what amounts to an offence, they are usually charged together. Here Anwar who, according to the said charges is the person who apparently committed an offence under section 377A, which carries a sentence of imprisonment which may extend to twenty
years, and will also be liable to whipping. At that time, he was still a free man, not arrested and detained yet..

PREMATURE DISCLOSURE OF NAME OF SUSPECTED OFFENDER - WHY?

The police released this information about Anwar's name to the court..
What was also odd was that the police also allowed the name of Anwar to be disclosed to the media. This is not normal  since the said Anwar was not in police custody. A premature disclosure would give him the opportunity to escape the hands of the law and/or possibly interfere with police investigations. The police should have obtained an order to
prevent disclosure of Anwar's name. Why was this not done?

The similar situation happened in the Nalla case. The said Anwar was still a free man, so why did the police and the office of the Attorney General disclose the name and the nature of their investigations against the former Deputy Prime Minister?  This is all very odd..

From the actions of the police and the office of the Public Prosecutor (Attorney General), there could only be two possible motives that I could think of. One, by the disclosure, the police hoped that other potential witnesses and/or complainants, who on knowing that the police
was investigating Anwar on such charges would come forward - but then there was such no call for any witnesses to come forward by the police..
Two, the police and the Public Prosecutor was interested to defame the man - but then, for what purpose. To date, Anwar has still not been charged with any of the offences which the police had said that they were investigating..

DEFECTIVE CHARGE?

The charges do not state the exact time and date when the alleged offences were to have taken place. In the case of Munnawar's charge, all that is said is that in the case of Munawar it happened "in the month of March 1993, at night", and in the case of Sukma, it happened "in the
month of April 1998, at night". This is odd, because the Criminal Procedure Code requires that the charge contain such particulars as to time and place. This was certainly an offence that occured on a particular day, and at a particular time so why were these facts left out..

OVERCONFIDENT PROSECUTION

Another point that was odd in this case was the fact that the prosecution was ready with the typed out facts of the case on the first day the accused is charged. Normally, on the first day the accused is brought to court and the charge is read to him. After that he is asked
whether he pleads guilty or claims trial. When the accused pleads guilty, another date is fixed for the sentencing. This is done so that the prosecution is able to prepare the facts of the case and any other exhibits that they would want to tender in court. Normally, except for
clear cut cases like traffic summonses, the prosecution would not have prepared the Facts of the Case because the prosecution would not know whether the accused would plead guilty or not..

WHY SESSIONS COURT, NOT MAGISTRATES COURT?

Both persons were charged in different courts, being the Sessions Courts, on the same day. The first question is why were they charged in the Sessions Court and not the Magistrate's Court, which is the normal practice. The Magistrate's Court has the jurisdiction to try all
offences for which the maximum term of imprisonment provided by law does not exceed ten years imprisonment and this offence under section 377D carried a maximum of penalty of imprisonment which may extend to two years only..

MITIGATION OR WHAT?

With regards to the mitigation, it is odd that the learned counsels for Sukma and Munawar had it apparently typed out and ready, for if not how would one explian the fact that the full transcript was carried in the local media. This is not the normal practice. Further, if they really had to type out the said mitigations, it is also strange why no cases were cited. It is also difficult to understand why the said lawyers dwelled so much on Anwar, for after all the mitigation was for their clients..

It is also odd, that your own lawyer in mitigation confesses to the fact that the accused had committed   more than the one offence for which the accused had been charged for and as the facts of the case. The said counsel,  in his mitigation states that "the immoral activities took place in Anwar's car and in his house".  The charge says "in his house", and the facts of the case says that it "took place in a small room close to the library on the first floor of the house". Why did Munawar's counsel in mitigation admit to two offences (one in the car and one in the house) or was it one continous offence which started in the car and ended in the house? In mitigation, the lawyer representing the accused should bring out mitigating factors(reasons for a lower sentence) that the court should consider before the sentence is passed. What Munawar's lawyer apparently did was raise a aggravating factor. Why?

It was also odd that in mitigation, the lawyers seem to be bringing out facts of the case in greater detail. For example, in the case of Munawar, it was stated that "Anwar Ibrahim used to call the accused on the phone and take the accused out for a drive at the Bukit Kiara area..
After two or three drives, Anwar Ibrahim started making advances..." Why was the said lawyer adding "juicy details" during mitigation? Details of the offence are tendered by the prosecution during the presentation of the Facts of the Case not by the accused's lawyer during mitigation..

MITIGATION OR QUALIFIED PLEA?

The offence under section 377D of the Penal Code is committed when a person "commits, or abets the commission of, or procures or attempts the commission by any person of, any acts of gross indecency with another person...". One commits the said offence when one participates in the
act voluntarily and with consent. If a person was forced into doing the act against his will, or without his consent, or because of fear of hurt or death to himself or to some other person, then surely the person cannot be guilty of an offence under section 377D..

What comes out in the mitigation of Munawar was that he participated in the said act because of fear that he might lose his job, "for fear that he might lose everything financially" and "due to the status pressure exerted by Anwar" and if that is the case, this will amount to a
qualified plea and the court should have at that stage rejected the plea of guilty and set down the matter for trial. If this was the case this man is most probably not guilty of an offence under section 377D..

It is a cardinal principle in law that any plea of guilty must be completely unreserved, unqualified and unequivocal. Even if the accused has pleaded guilty and admitted to the facts of the case, but in mitigation what was stated amounted to a qualified plea, then the court
should have rejected the plea of guilty and entered a plea of "Not Guilty". It clearly should have been done in Munawar's case but why was it not done?

A CONFESSION WAS TENDERED DURING MITIGATION-WHY?

In the case of Sukma, one interesting point was that the counsel in the middle of his submission  "tendered a confession made by Sukma to the court as an exhibit". No lawyers, that I consulted,  have never heard of this being done before. During mitigation, one might tender a medical report to support the point that the accused is of poor health but not a "confession". Factors that are usually brought out during mitigation are the age of the offender, the fact that the accused had repented, the effect of the conviction on him, the fact that by pleading guilty the accused had saved the court's time, etc.. NOT the tendering of a confession (or was it the caution statement made by the accused while he was in police custody). This is very odd..

Note that the Evidence Act states that a confession made by a person whilst in the custody of the police is not admissible, unless it was made in the immediate presence of a Sessions Court Judge or Magistrate..Similarly a confession made as a result of inducement, threat or promise
having reference to the charge against the accused person, proceeding from a person in authority, and giving the accused person  reason to belive that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him. What I have stated about the Evidence Act is not exhaustive. In any event, we have to wonder whether what was tendered was a "confession", and if it was, when was it actually made and why was it made especially since Sukma was going to plead guilty anyway?

CONCLUSION

At the end of the day, all that one can say about these two cases, which were produced in court on a Saturday morning at 11.00am and disposed quickly, raises a lot of unanswered questions. The timing of the arrest and the said charges are also questionable, especially since it happened at a time when the Malaysian people were demanding proof for the allegations of "low morals" made by the PM. Was the charging of the two, the guilty plea and subsequent conviction done only to jsutify the allegations made by the Prime Minister for the sacking and expulsion of Anwar from the Cabinet and UMNO? The words of the Perak Menteri Besar, Tan Sri Ramli Ngah Talib which was reported in The Star(20/9/98) seems to support this belief: "They pleaded guilty in a formal court of law before a judge hence this confirms the truth of the matter"..

But, one has to disagree since the truth of the matter with regards to Anwar can only be established once he has had the opportunity for a fair trial before a truly independent judge, who will hear and decide on this case without fear and favour. But, is this possible? All we can do is hope that the answer is "YES"..
 
 

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Notes:-
The charge against Sukma
SUKMA DARMAWAN SASMITAAT MADJA

CHARGE
"That you in the month of April 1998, at night, at the Offcial Residence
of the Deputy Prime Minister at No 47, Jalan Damansara, in the Federal
Territory of Kuala Lumpur, committed an act of gross decency with one
Datuk Seri Anwar Ibrahim by allowing the said Datuk Seri Anwar Ibrahim
to introduce his penis into your anus and you had thereby committed an
offence punishable under Section 377D of the Penal Code."
 

The charge against Munawar
MUNAWAR AHMAD ANESS

CHARGE
That you in the month of March 1993, at night, at No. 8, Jalan Setia
Murni 1, Bukit Damansara, in the Federal Territory of Kuala Lumpur,
committed an act of gross indecency with one Dato' Seri Anwar Ibrahim
by allowing him to introduce his penis into your anus and you had
thereby committed an offence punishable under section 377D of the Penal
Code"..