The lawyers insisted that prostitution is not illegal in Malaysia though soliciting for sex is, saying that the de facto law minister would be challenged to prove his case even following the standard criminal procedures.
Bar Council president Lim Chee Wee denounced Nazri’s remark as off-the-mark and said the Bar is against the establishment of an RCI just for the sex video clip incident.
“If there was a criminal offence, then it should be investigated as such,” he told The Malaysian Insider in a response to the minister’s statement yesterday.
“Prostitution is illegal in Malaysia. If you participate, or you are aiding and abetting in prostitution, if you patronise prostitutes for sex, this is a crime.
“The RCI would be to determine the identity of the man in the video and of the woman he was having sex with, whether she was a prostitute,” Nazri had told The Malaysian Insider yesterday.
Anwar has denied he is the man in the grainy 21-minute black-and-white video clip, first shown on March 21 to selected journalists.
“Prostitution in itself is not a criminal offence,” he stressed, though he acknowledged there were certain provisions in the law to prosecute those who offer sex in exchange for money.
He pointed to section 372A of the Penal Code which provides for action against persons living on or trading in prostitution.
“Whoever knowingly lives wholly or in part on the earnings of the prostitution of another person shall be punished with imprisonment for a term which may extend to fifteen years and with whipping, and shall also be liable to a fine,” Lim said, citing the law.
He said the law had even defined that only a person who “is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that that person is aiding, abetting or compelling the prostitution of the prostitute with any other person” can be charged.
Lim pointed out that under the Commissions Enquiry Act 1950, the Yang di-Pertuan Agong holds the discretion to set up an RCI on matters he thinks are of public importance.
He advised the Cabinet to reject Nazri’s idea, saying it was a waste of time and resources, which could be put to better use resolving long-standing issues, such as the Sabah illegal immigration crisis, alleged corruption of the Sarawak chief minister and the most recent death in the MACC’s building.
“The Cabinet must give greater priority to far more urgent and grave problems plaguing the institutions of the nation than adulterous conduct of an individual, allegedly a politician,” he said.
Andrew Khoo, who heads the Bar Council’s human rights committee, agreed with Lim’s view.
“An RCI is there for matters of national importance and I’m not talking about an individual who holds no particular government office,” he told The Malaysian Insider.
He noted that previously the government pushed for royal investigations only when it dealt with allegations of improper behaviour on the part of the government.
“In the RCI on V.K. Lingam, the issue was on the impartiality of the judiciary. In D.P. Vijendran’s, he was the Deputy Speaker of the Dewan Rakyat at that time,” Khoo said, naming some examples involving prominent politicians which justified the need for a royal investigation panel.
“Here, the question is: ‘What institution of government is being compromised?’ The answer is, there is none. So why do we need to accord it that level of investigation?” he asked.
He further questioned the need for special treatment on the sex video in Malaysia where there were valid laws to deal with lawbreakers and the alleged sex act has nothing to do with protecting or safeguarding the institutions of government.
He insisted that on that reason alone, the suggestion for such an RCI should be buried immediately, “otherwise there will be an RCI for every single thing recorded, even on phones”.
“If that’s the case, then any evidence you have on a video of a sex act, does that necessitate an RCI? Is that what Nazri is suggesting?” Khoo asked.
Criminal law specialist Cheow Wee felt the same way.
He found it incredulous how Nazri could suggest an RCI for a sex act caught on video that was simply unfounded allegation, that it featured an MP, that had yet to show elements of soliciting for prostitution, as defined by the Penal Code.
He pointed out that calling for an RCI at this stage was premature as the police have yet to wrap up investigations.
“What crime are they complaining about? Are they saying it’s wrong for two consenting adults to have sex? Or that Anwar can’t have sex? Or that soliciting was involved, that money was exchanged?
“We don’t even know if there is prostitution in this video. And so what if it’s Anwar and he is having sex with another person?” asked the criminal lawyer, who is also taking part in the ongoing RCI into the death of political aide Teoh Beng Hock while under the Malaysian Anti-Corruption Commission’s (MACC) watch two years ago.
“It’s a moral and ethical issue at the end of the day because members of Parliament and ministers are expected to have high moral standing, but you don’t need an RCI for that,” said Cheow, adding that the issue was being manipulated for political mileage.
Former Malacca Chief Minister Tan Sri Abdul Rahim Thamby Chik, businessman Datuk Shazryl Eskay Abdullah and Perkasa treasurer-general Datuk Shuib Lazim have claimed responsibility for the video, saying they screened the video to show “a man who wants to be prime minister is not qualified.”
A 107-second snippet surfaced on the Internet on Sunday, just two days after police said the video was not doctored.
It made public part of the video that was only screened to select individuals and reporters prior to this but the clip has since been taken down from YouTube for violating the video site’s policy on nudity and sexual content.
Cheow urged the authorities to take action against the trio because they had violated the rules by showing a sex video that could not earn them the protection of the Whistleblowers Act.
“There are procedures they have to abide by if they want to be within the ambit of protection. But they went straight and showed it in Carcosa,” the lawyer said.
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