Amanda Whiting, University of Melbourne
East Asia Forum
13 April 2015

These are dangerous times for the rule of law in Malaysia. The Federal Court’s decision on 10 February 2015 to affirm Opposition leader Anwar Ibrahim’s criminal conviction for ‘carnal intercourse against the order of nature’ is shocking, but entirely predictable.

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.