The Politics of Sodomy: Will Justice be Mangled Again?

To convict an innocent man of false charges, there must be four parties acting in concert, three of them in the criminal justice system. They are the Police to fabricate evidence, the Attorney-General to frame the charge and the Judiciary to convict the accused irrespective of whether he can put up a creditable defense.

By Kenny Gan, Suara Keadilan

As the pain and anger of Anwar’s 1998 sodomy trial fade in intensity after 11 intervening years, slowly replaced by fresh, hopeful anticipation of change, we are yet again confronted by an almost comical repeat of the stale sodomy charges that threaten to open deep scars of shame and regret in our national psyche.

Future generations of Malaysians will look back aghast at how we could have allowed it to happen, how we could have permitted one despot to subvert and manipulate all our cherished instruments of democracy to serve his personal agenda of demolishing a political enemy.

As we look back in anguish and plead that we were helpless to resist the iron-fisted dictator who controlled all the levers of power in a climate of fear, we now face another chance to resist the naked assault on decency and justice and we wonder if we are just as helpless as we were before.

How have things changed in more than a decade and what are we up against?

To convict an innocent man of false charges, there must be four parties acting in concert, three of them in the criminal justice system. They are the Police to fabricate evidence, the Attorney-General to frame the charge and the Judiciary to convict the accused irrespective of whether he can put up a creditable defense.

However in a democracy, even these three powerful institutions acting in concert are not enough. To this must be added a fourth institution – the press, also aptly referred to as the ‘Fourth Estate’.

These four institutions which protect our freedom and democratic rights are also called the pillars of democracy.

Unfortunately, all of them have been severely damaged by Mahathir during his iron-fisted rule. If even one of them had been healthy and functioning properly in 1998, the unjust conviction of Anwar back then would not have been possible.

From 1998 to 2009

How do these institutions fare now compared to eleven years ago? Is it possible for a repeat of the shameful sodomy caper of 1998?

There is certainly no improvement in the institution of the Attorney-General and the Police. They are now helmed by men who actively participated in the prosecution of Anwar in 1998. The current A-G, Gani Patail was the head of the prosecution team and the current IGP, Musa Hassan was the head of the police investigation team in Anwar’s previous sodomy case.

The judiciary sometimes shows a rare spark of independence but only rarely and planned judicial reforms appear to have gone nowhere. As the Perak crisis has shown, there is certainly no lack of judges willing to serve the government instead of serving justice.

The mainstream media is less slavish than it was under Mahathir but is still a well controlled boneless wonder. However there is one significant difference – the alternative media is now fully developed.

In 1998 the Internet was at its infancy. The government controlled the flow of information through the mainstream media to mould public opinion and anything could be buried by the powers-that-be. But this is no longer possible as online penetration is at least twelve times what it was in 1998 and the online media has reach mainstream status.

An example is the Lingam video scandal which was ignored by the mainstream media and the government initially but knowledge of it became so widespread via the online world that the Bar Council and the government were forced to act.

So the first three institutions are still compromised – enough to do the the hatchet job again; in fact, some would say they have become worse.

Only the press has improved somewhat although it must be said that the improvement in information access was an unintended side effect of the proliferation of the Internet and not from any positive action by the BN government.

Can the freer flow of information save Anwar now as he battles for his political future?

A Question to Ponder

It is sad that 11 years after the infamous sodomy trial we still have to ponder this question instead of declaring confidently that thing have changed so much that sending an innocent man to jail under fabricated charges is no longer possible.

What the new information environment means is that nothing can be hidden, obscured, obfuscated or distorted. Every proceeding of the court and every evidence tendered or argument advanced will be dissected and scrutinized in detail by a local and international audience.

The mainstream press cannot be too one-sided now. It must at least show some decorum of balanced reporting in the face of widespread public knowledge to avoid insulting its readers.

The prosecution must show some real substance to obtain a conviction instead of depending solely on a compliant judge or the wave of public disgust and derision may make Malaysia ungovernable.

Let’s not forget that two hospitals have ruled out that his accuser had been sodomized which is sufficient to blow the top off the case in any civilized country.

A blatantly unjust conviction will draw strident condemnation from politicians, social activists, rights groups and NGO’s  and the transparent political persecution of an opposition leader will invite outside condemnation and make Malaysia an international pariah.

So does this mean that Anwar is safe? The answer is “not necessarily” because despite extreme negative publicity, Umno is arrogant enough to ride roughshod over public opinion when it suits them.

What could give the conspirators pause is only the fear that public anger and disgust could cause it to lose enough political support to jeopardize its hold on power.

How Umno perceives that fear will be the deciding factor in Anwar’s court battle.

The Politics of Sodomy

The stakes are certainly higher now – the political reward as well as the political risk. A conviction could put Anwar out of active politics for good by making him miss two elections and throw the PR coalition into disarray.

On the other hand, it could strengthen PR by giving them a rallying point while public support bleeds away from the BN over the perceived injustice. With a two-party system BN faces a real possibility of losing power while a decade ago the penalty was only about losing some seats.

Anwar’s incarceration and banishment from active politics could only last as long as BN continues to hold power.

The more blatant the courtroom injustice, the longer, deeper and wider reaching the negative aftershock so Umno is not entirely free to ram through a ridiculous conviction in a shameless kangaroo court presided by a puppet judge.

But the general election is more than 3 years away and Umno has an infantile attitude in that present, direct benefits eclipse future indirect benefits in importance. No clearer is this demonstrated than in Umno’s insistence on holding on to Perak at any cost.

As the charade is played out in the court, it is not the weight of evidence but the complex interplay of political forces against the backdrop of civil society’s demand for basic human decency that will determine Anwar’s fate.

On July 8 we will know if the charges are to be dismissed on the basis of the hospital reports or if the trial is to proceed. If it does proceed, a Rubicon will be crossed and chances of getting justice slimmer.

The courtroom battle will certainly be fierce. In 1998 Anwar’s defence team was cowed and threatened with contempt by the judge whenever they tried to put up a creditable defence but they are prepared now and if nothing else will give the establishment a severe black eye.

It would be easy to leave the question dangling and say the chance is 50-50 but after weighing all the factors my personal opinion is that Anwar will escape conviction.

A Nation Fights for its Future

Anwar’s fight to clear his name in his coming court battle will be a defining moment for Malaysia.

This is not about one man’s fight for justice but an indicator of the path the nation is taking.

As long as our democratic institutions are damaged, no Malaysian is safe from unjust prosecution and well-connected guilty ones can escape justice.

It also means that there is no check and balance to prevent or remedy all manner of abuses and wrongdoings such as endemic corruption and plundering of resources.

The nation waits with bated breath as we stand at a crucial fork in the road to nationhood, wondering if we will take the path to a maturing democracy or slide down the slippery slope to a failed state like Zimbabwe and Myanmar.

Whether we agree or disagree with the politics of the man himself, let us all hope that this trumped-up case is dismissed as it should.

This battle for justice is not just for Anwar but for everybody, not just for Anwar but for all Malaysians.