Final Appeal for Anwar to Begin in Malaysia

On Oct. 28 and 29, lawyers for Malaysia’s opposition leader Anwar Ibrahim are expected to go before the Federal Court, the country’s highest tribunal, to argue a final appeal on Anwar’s 2012 conviction in the so-called Sodomy II trial.

Anwar was ordered freed by a high court in 2011 only to be convicted by an appellate court after prosecutors appealed the case, in which he was accused of having consensual homosexual sex with a former aide, Mohd Saiful Bukhairy Azlan, in 2008.

The opposition leader, now 67, is said to be depressed and fully expecting to go to prison, which would finish his political career, even if freed early, since Malaysian electoral law prohibits those convicted of crimes for running for five years. The question is, if he is jailed, what would become of the three-party Pakatan Rakyat coalition, which was already badly damaged by political infighting earlier this year over the naming of a new chief minister for Selangor, Malaysia’s richest and most populous state.

Given the weakness in the coalition, there is some speculation that what is obviously an extremely politicized court could be ordered to free Anwar, given the international opprobrium the decision would earn the country and the fact that jailing him would give the coalition a potent symbol of martyrdom.

Although the case against Anwar is almost universally regarded by human rights organizations and foreign governments as a circus trumped up to get rid of him as a force to challenge the ruling Barisan Nasional, it has preoccupied the opposition leader for the past six years, cutting into his ability to lead Pakatan Rakyat, which won the popular vote in the 2013 general election only to be thwarted from a majority in parliament by gerrymandering and the country’s first-past-the-post electoral system.

It is hard to escape the conclusion that the entire episode, starting with Anwar’s arrest in 2008, has been organized to try to blunt the increasing effectiveness of the coalition at a time when the ruling Barisan Nasional is riddled with corruption and cronyism. The charges were filed against him not long after the coalition made a dramatic showing in the 2008 election, denying the Barisan its two-thirds majority in parliament for the first time.

“Malaysian authorities should drop their case against (Anwar) or risk making a travesty of the country’s criminal justice system,” said Phil Robertson, Deputy Asia director at Human Rights Watch, in a prepared release.. “This drawn-out political theater has long been exposed as an attempt by the government to take Malaysia’s most senior opposition leader out of political contention.” As Robertson says, “the ordeal of Anwar Ibrahim in Sodomy II – Sodomy I having been even more disgracefully trumped up against him in 1998,” has already damaged the country’s reputation in international circles. It has been condemned by the Geneva-based Inter-Parliamentary Union, a majority of the Australian Parliament, Amnesty International and others in addition to Human Rights Watch.

It is a case that would have been laughed out of court in any rational justice system. Saiful admitted in court that he met with then-Deputy Prime Minister Najib Tun Razak, his wife Rosmah and Rosmah’s close friend and advisor, the former track star Mumtaz Jaafar, at Najib’s home two days before the sodomy charge was filed, calling into question Saiful’s veracity as a witness. Najib and Rosmah both were allowed to refuse to testify under oath about the meetings with Saiful.

Saiful also acknowledged meeting secretly twice with Rodwan Mohd Yusof, a senior assistant police commissioner, before the alleged offence took place. Rodwan became famous, or infamous, in Anwar's 1998 Sodomy I trial when he was proven to have illegally removed Anwar's DNA samples from forensic custody and planted them on a mattress allegedly used by Anwar for a homosexual dalliance. To protect the integrity of the prosecution's case, the presiding judge, Augustine Paul, was forced to expunge the entire DNA evidence.

Sodomy II, which began in February 2010, has been marred by the introduction of questionable evidence, egregious prosecutorial errors and a long series of prejudicial rulings and one controversial reversal by High Court Judge Mohamad Zabidin Mohamad Diah. It was botched even before it began when prosecutors, acting on a supposed complaint by Saiful, charged Anwar with homosexual rape, only to have to drop that charge and change it to consensual sex of an unnatural nature when it became clear that Saiful had gone to Anwar’s condominium with a tube of lubricant in his pocket, although there is no evidence that he actually was in Anwar’s presence.

Anwar said he was meeting in the condo at that time with a group of economists. The alibi was disallowed. The consensual sex charge has only been levied seven times in 76 years, according to Malaysia’s Women’s Candidacy Initiative. .

From the very beginning, when Saiful sought to get doctors to certify that he had been sodomized, doubts began to surface. Saiful first went to a private hospital, where a doctor found no evidence of penetration and told him to go to a government hospital. At the first government hospital, doctors also told him they had found no evidence of tearing or scarring that would have indicated his anus had been penetrated. He was forced to go to a third government hospital where he finally found a physician willing to say the act had taken place -- 56 hours after it supposedly happened, during which he said he had not gone to the toilet, which could have corrupted the sample...

Other testimony indicated that the samples taken from Saiful were kept unguarded in a police office for 43 hours without refrigeration before they were turned over to the laboratory for analysis. Chemists testified that as many as 10 different DNA samples had been found in Saiful’s rear, making the whole analysis process suspect.

That any samples could be taken from Anwar legally is also questionable. Under Malaysian law at the time, suspects could refuse to give DNA samples. However, the Dewan Rakyat, Malaysia’s parliament, passed a law repealing the consent requirement after Anwar’s arrest. In most courts, law cannot be applied retroactively.

Although Anwar refused to give a DNA sample, items issued to him during his overnight stay in jail were analyzed and a sample was found. Zabidin in March handed Anwar a major victory by throwing out the purported DNA evidence because it had been taken without his permission. However, a week later, after the prosecution demanded it, Zabidin reversed himself and said the evidence could after all be entered into the court despite the retroactive nature of the law.

There are numerous other discrepancies. Abdul Gani Patail, the main prosecutor in the 1998 sodomy proceedings that were thoroughly discredited, has been involved in the present case at a time when he was being investigated by the Malaysian Anti-Corruption Agency following allegations of fabricating evidence.

There was an “almost systematic rejection of all defense applications for disclosure of prosecution evidence, which it would need in order to mount the defense,” according to one report by an Australian investigator..

There was also the fact that Saiful was having a sexual liaison with Farah Azlina Latif, a female member of the prosecution team during the trial, which should have further disqualified him as a complaining witness.

Unfortunately, what the evidence has shown most clearly is not that Anwar was guilty or not guilty of having what the government termed “unnatural consensual sex” with his former aide. It is rather that the trial was skewed so badly in the government’s favor that the opposition leader demonstrably did not get a fair trial.