Last edited: September 19, 2004

Fight to Clear Anwar’s Name Is Far From Over

Asia Online, September 10, 2004

By Michael Backman

Last week’s decision by Malaysia’s Federal Court to overturn former deputy prime minister and finance minister Anwar Ibrahim’s conviction for sodomy might have got him out of jail, but it did not get him off the hook.

Many commentators and journalists who commented and reported on the decision do not appear to have read the detail of the 36-page majority judgement.

The initial conviction rested on a confession by Anwar’s co-accused, his adopted brother Sukma Darmawan, and statements by the only witness, Anwar’s wife’s driver, who claimed to have been sodomised by both men.

The charges against the two men related to acts of sodomy between given dates, dates that famously had to be changed three times on the charge sheet. The Federal Court majority judgement ruled Sukma’s confession as inadmissible. The judges found that it had been obtained under duress.

There is little doubt as to Sukma’s sexual orientation, but what the court had to prove beyond reasonable doubt was that the incidents occurred within the dates specified by the charges. The Federal Court judges found that the dates had not been proven, and it was on this basis that they allowed Anwar’s appeal.

Critically, the majority judgement says: “We find evidence that the appellants were involved in homosexual activities.” It is this point that many in the media, particularly outside Malaysia, seem to have missed. What they couldn’t find evidence for was the dates.

In one respect the majority judgement goes further than earlier courts. It finds that the driver was “an accomplice” to the acts of sodomy. Earlier courts had judged him to be a victim.

To put it crudely, the judges paint a picture of a happy threesome, rather than of two sexual aggressors.

Rumours of Anwar’s homosexual activities had circulated in Kuala Lumpur for years. Hanif Omar, the well-regarded police chief from 1974 to 1993, has publicly stated that the police were concerned before 1993 about Anwar’s alleged homosexual activities, because of the risk of blackmail. In that year he had informed then prime minister Mahathir Mohamad of the concerns. Mahathir at that stage found Hanif’s claims difficult to believe and Anwar was not charged for another five years.

Why does all this matter? Because in Malaysia, politics and business are inextricably linked. Anwar had no shortage of “clients” in the business sector when he served as finance minister. He awarded banking licences to conglomerates that previously had been unable to get them, and his people were appointed to the helms of various government-linked companies. His backers in the business community manipulated the stockmarket to raise funds for his campaigns within the ruling party.

Many Malaysians are pleased to see Anwar released, but that might be more a consequence of a Malay preference to let bygones be bygones rather than because of a view that the sodomy charges were fabricated. When asked to express an opinion regarding Anwar’s guilt, most Malaysians seem to be of the view that they just don’t know.

Indeed, what was unusual about Anwar’s treatment was that it was so devastating. The winner-take-all approach is alien to Malay culture. Had the Government, and more particularly Mahathir, orchestrated events in the grand conspiracy that is supposed to have occurred, then Anwar’s annihilation is unlikely to have been so total.

It’s more usual in Malaysia for the defeated to be allowed to retire from the public sphere with a degree of dignity.

In any event, politicians in Malaysia do not direct the outcomes of trials, contrary to widespread belief. Ministers do not call judges and demand convictions. There’s no need. Typically the judiciary does the Government’s bidding without being asked.

A very senior Malaysian Government figure once described Malaysia’s judiciary to me as a “bunch of bloody idiots”. “Of course we want them to favour us,” he explained, “but not to the point where it’s embarrassing.”

Anwar’s prosecution pointed to a process so out of control that none of the participants was able to stop it. The police and the judiciary overestimated what was expected of them, and the Government, true to its word, did not intervene. Instead it looked on with rising horror and incredulity.

Mahathir might have hoped for Anwar’s removal, not his destruction.

But does the freeing of Anwar now signal a more independent judiciary? Maybe not. Perhaps once more, the judiciary was simply second guessing the Government’s wishes. The new Prime Minister, Abdullah Badawi, appeared to be quite comfortable with the court’s decision and among the well-wishers at Anwar’s house soon after was Khairy Jamaluddin, Abdullah’s son-in-law and close adviser.

Will Anwar rise once more? Electoral support for his cause appeared to be waning at this year’s elections, when the opposition party headed by his wife saw its representation in Malaysia’s Federal Parliament fall from five seats to one.

Also, the fact that the Federal Court cleared Anwar of the conviction, but not the allegations, will not go unnoticed by many in Malaysia. Nor will it go unnoticed by Anwar’s many enemies, who will have an interest in reminding the electorate and the ruling party that, in the view of all three Federal Court judges, Anwar is a sodomite.

Of course, in more liberal countries the notion that sodomy is a criminal offence is absurd, but in a morally conservative society, it’s not a foundation on which to rebuild a political career.

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