For a while, it seemed that
domestic and international condemnation of the harassment of Anwar and the
political misuse of draconian laws against opposition politicians and social
activists had worked to improve Malaysia’s legal system. The United Malays
National Organisation (UMNO) government appeared to have taken on board the
response to the 1998–2004 ‘Sodomy I’ legal proceedings against Anwar, and
broader criticisms of its authoritarian rule. But the ‘Sodomy II’ proceedings
and their aftermath suggest otherwise.
The ‘Sodomy I’ episode bore
many of the hallmarks of a classic show trial: police brutality, coerced
confessions, denial of basic procedural fairness in court, and an absence of
judicial impartiality and independence. Anwar was beaten while in police
custody and witnesses were coerced into making confessions incriminating Anwar
and themselves. Several defence lawyers were prosecuted when they tried to
establish a political conspiracy against Anwar. Anwar’s supporters, and
participants in the wider movement of Malaysians calling for an end to
authoritarian rule, were subject to harassment, police brutality, and some to
periods of detention without trial.
The Malaysian Bar Council,
the Malaysian Human Rights
Commission, the Australian Bar Association
and other international observers
condemned the legal proceedings and the harsh treatment of dissenters. So when
the Federal Court overturned Anwar’s sodomy conviction in September 2004, the
Malaysian Bar hailed the decision
as ‘a meaningful turning point in the Malaysian legal and judicial system,
demonstrating that Malaysian justice can be independent of politics’. At the
same time, the Bar warned that there was still some way to go before the
justice system could ‘regain the trust and confidence’ of the people.
Following the establishment
of the Judicial Appointments Commission in 2009, the Malaysian judiciary seemed
to be on the mend. More appointments were made to the bench from the private
Bar, and several important civil liberties and constitutional rights cases have
been decided by intermediate-level courts against the state. Also promising was
the 2011–12 annulment of the state of emergency, repeal of laws permitting
detention without trial and some lessening of government control of
the press.
Given these constructive
steps, ‘Sodomy II’ was surprising. Yet, at the same time, it was entirely
predictable. Many of the positive legal developments are not securely based.
The institutions of Malaysian public and political life are fragile, and have
been eroded by cynicism and neglect. They are crumbling under the pressure
placed upon them by UMNO’s struggle to stay in power after suffering historic
losses in the 2008 and 2013 general elections.
Most of the extravagant show
trial elements of the earlier proceedings against Anwar were absent this time
around. Unlike ‘Sodomy I’, emergency ordinances were not deployed and Anwar’s
legal team was not prosecuted for contempt of court or sedition for conduct
directly related to his legal defence. But there were sufficient procedural
irregularities. For example, the defence claimed that it was denied access to
crucial prosecution evidence.
‘Sodomy II’ is still a
classic political trial in the negative sense of that term. The government used
the massive power of the state legal apparatus to cast a political opponent as
a reviled criminal. The court itself refused to entertain the material that
might substantiate a political conspiracy against the accused. In the aftermath
of the conviction, more than 100 people who criticised the decision have been arrested.
The decision to prosecute
Anwar for consensual ‘carnal intercourse against the order of nature’ was
political. Why, lawyers asked, was the complainant, Anwar’s political aide
Saiful Bukhari Azlan, not charged as an accomplice?
Anwar was not charged with coercive unnatural sex, and the evidence suggested
Saiful’s repeated participation. Why then was Anwar given the heavy punishment
of five years imprisonment, and the loss of his parliamentary seat, for a
victimless offence?
The timing also reeks of
cynical politics. It came a few days after Saiful had a private
meeting with the then deputy prime minister (now Prime Minister) Najib Razak,
and a short time before Anwar made public his decision to contest a
parliamentary seat in a by-election.
Anwar was initially
acquitted by the High Court in January 2012 because the DNA evidence — crucial
to Saiful’s testimony — had been mishandled and was unreliable. The Public
Prosecutor immediately appealed the acquittal, leading to the conviction in
February. The common law assumes that the prosecution should not appeal an
acquittal, but the Malaysian Parliament legislated in 1976 to permit it.
After Anwar had been
imprisoned, the privately appointed prosecutor undertook a ‘roadshow’ to
explain the court’s decision to the public. UMNO initially denied the
government was involved, but it later admitted some role,
and its Youth Wing appears to
have been involved as well. The prosecutor obtained an ex parte
injunction, stopping the Malaysian Bar from debating its condemnation of the
prosecutor’s conduct at its annual general meeting on 14 March 2015. Disciplinary proceedings
against the prosecutor are, however, still possible.
Immediately after the guilty
verdict was read out, the Prime Minister’s Office
released a statement praising the independence of the judiciary. At the same
time, Anwar denounced the trial
as a political conspiracy and the judges as ‘partners in crime for the murder
of judicial independence and integrity’. In contrast with ‘Sodomy I’, the
appellate judges in ‘Sodomy II’ have been models of decorum. One can certainly
criticise the legal reasoning, but there is no sign of the erratic rulings that
marked ‘Sodomy I’.
The courts can and do
deliver reasonably sound rulings in ‘normal’ cases, deciding them according to
established principles of law and procedure. But in ‘political’ cases where
citizens’ rights come up against the UMNO government, the outcome can be
surprising. This is because the UMNO government channels political disputes
into the courts, distorting legal institutions and the legal process. It is a
shocking waste of the courts’ time and of public resources. Furthermore, it ties
up Opposition politicians and first-rate litigators in countless court
preparation and appearances. Anwar alone has featured in more than 50 reported
cases since 1998.
Anwar’s case is not typical,
but it is symptomatic of a pernicious and widespread disease within the
Malaysian legal and political system.
Amanda Whiting is a Lecturer
of Law and Associate Director (Malaysia) at the Asian Law Centre, University of
Melbourne.
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