Puzzling Delay in Anwar Verdict

Fears are rising among allies of Anwar Ibrahim that the Malaysian opposition leader will be sent to prison on what appear to be trumped up sexual perversion charges, weeks after the country’s highest court heard final arguments.

The Federal Court took the case on Oct. 27 for several days of arguments. Although a decision was expected within days, nearly a month and a half has passed without the court announcing its decision.

Anwar, who heads the Parti Keadilan Rakyat, the lead element of a three-party triumvirate making up the opposition Pakatan Rakyat, is said to be resigned to going back to prison. He served six years previously in what was called Sodomy I, which was condemned by a wide range of human rights organizations and western countries as hopelessly biased to get rid of Malaysia’s most popular opposition figure. In October, he said his chances “didn’t look good.”

The delay in the decision is puzzling. Normally the Federal Court rules shortly after final arguments. But Malaysia has a deeply politicized court system in which any case involving the opposition is likely to be judged on its effect, adverse or not, on the fortunes of the Barisan Nasional, the national ruling coalition. Most observers in Kuala Lumpur assumed the decision would be held up until after the United Malays National Organization’s annual general assembly, which was held in the last week of November.

Prime Minister Najib Tun Razak is generally viewed as having emerged from the UMNO conclave weakened by a number of factors. He was forced to give in and endorse an extension of the colonial-era Sedition Act, which he had promised leaders of other countries he would scrap. He is also besieged by continuing controversy over the vast debts run up by 1Malaysia Development Bhd., of which he is the chairman of the board of advisors. Former Prime Minister Mahathir Mohamad has publicly withdrawn his support for the prime minister. Deputy Prime Minister and deputy UMNO chief Muhyiddin Yassin has been indirectly critical of UMNO’s path and is said to be open to taking over, although he will not challenge Najib directly.

Because of the weakness of his position, analysts say, Najib’s orders to the court probably would be to jail him. That is an issue that is certain to make the 67-year-old Anwar a political martyr and enhance his popularity to much of the country, as well as earning Malaysia international opprobrium and damaging its image as a modern Muslim country. But, the sources say, it is Najib’s position in UMNO that counts. And if UMNO wants the opposition leader in jail in order to enhance Najib’s intra-party standing, Anwar will in all likelihood go to jail.

One of the things that has puzzled and disheartened Anwar’s followers is the stance of the United States government and particularly of US President Barack Obama, who visited Malaysia in April. The President declined to meet with Anwar, leaving that task to US Security Advisor Susan Rice. Instead he praised Najib, regarding him as a reformist leader. He conveyed thanks through US Ambassador Joseph Y Yun and didn’t bring up the subject of the threat to Anwar’s freedom in private discussions, according to sources in Kuala Lumpur.

The campaign against Anwar, however, has been condemned internationally by legal scholars and human rights activists across the globe who were hoping the US President would take Najib to task because of the trial’s flaws and because of what many regard as its clear political intention to put a potent foe out of business. Consensual sex among individuals of the same sex is illegal, it is rarely prosecuted in Malaysia.

The trial was marred by refusal of the prosecution to share evidence with the defense, egregious prosecutorial errors and a long series of prejudicial rulings by High Court Judge Mohamad Zabidin Mohamad Diah. It has been condemned by the Geneva-based Inter-Parliamentary Union, 60 members of the Australian parliament, Amnesty International and Human Rights Watch and prominent leaders from Commonwealth nations including Paul Martin of Canada and others.

But Anwar had become a formidable political force following his release from prison on internationally-condemned charges clearly trumped up against him at the behest of then Prime Minister Mahathir Mohamad in 1998. He was sentenced to nine year in prison on those charges in 2000, but was freed in 2004 when an appellate court under new Prime Minister Abdullah Abdul Badawi freed him.

In the March 2008 general election, Anwar’s Pakatan Rakyat stunned the ruling coalition, winning five states including Selangor and Penang, two of the country’s richest, and breaking the coalition’s 50-year absolute hold on power with its two-thirds majority of parliament. In publicized debates, Anwar demolished opposition speakers.

Gordon Trowell, in a report for the Inter-Parliamentary Union, pointed out that the charges were levied just as Anwar was making a spectacular return to the political scene from a long period in the political wilderness following the first trial.

Prior to the time the alleged encounter took place, the complaining witness, Mohammad Saiful Azlan Bukhari, met with then Defense-Minister Najib, his wife, Rosmah Mansor, Rosmah’s best friend Mumtaz Jaafar, and one of the government’s top prosecutors. None of them were called to trial to explain the reason for the meetings under oath.

From the beginning, when Saiful sought to get doctors to certify that he had been sodomized, doubts began to surface. Two hospitals found no evidence that he had been sodomized. A third government hospital finally found a physician willing to say the act had taken place.

Mistakes made over DNA samples called into question whether the evidence could survive in a rational court of law. Police officials testified that Saiful didn’t offer to be tested for DNA samples until 56 hours after the alleged incident, and he said he hadn’t defecated during those two days, 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. Judge

That any samples could be legally taken from Anwar was 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.

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 was an “almost systematic rejection of all defense applications for disclosure of prosecution evidence, which it would need in order to mount the defense,” Trowell wrote in his report. There was also the fact that Saiful was having a sexual liaison with Farah Azlina Latif, a female member of the prosecution team, which should have further disqualified him as a complaining witness.

However, none of that will probably matter when the Federal Court makes its ruling. That will be built on Najib’s standing in UMNO, measured against the probable damage to the ruling coalition from Anwar’s martyrdom, and on how much international scorn Malaysia will earn from the verdict.