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Volume 11 Number 4
New Delhi, Winter 2004
Newsletter   

Anwar, Sodomy and Freedom
Edmund Bon
Advocate and Solicitor, High Court in Malaysia

It is a fallacy to interpret the recent acquittals of Dato' Seri Anwar Bin Ibrahim ("Anwar") and Sukma Darmawan Sasmitaat Madja ("Sukma") by the Federal Court on sodomy charges as a return to independence of the judiciary in Malaysia. In fact, it would be dangerous to do so.

Anwar was charged for sodomising Azizan Bin Abu Bakar ("Azizan") on one night between the months of January and March 1993 at Tivoli Villa. Sukma was charged with two offences for abetting Anwar's act with Azizan, and for sodomising Azizan on that same night. Anwar and Sukma were tried jointly. They were convicted by the High Court ("the sodomy trial"). Anwar was sentenced to 9 years' imprisonment, to run consecutively after the expiry of his sentence of 6 years' imprisonment for corrupt practices ("the corruption trial"). Sukma was sentenced to 6 years' imprisonment and 2 strokes of the whip for each of the 2 charges. However, his sentences of imprisonment were to run concurrently. The Court of Appeal subsequently affirmed this decision.

The Federal Court on 2 September 2004 decided, by a majority of 2-1, to set aside the convictions arrived at, in the sodomy trial. Abdul Hamid Bin Haji Mohamad FCJ and Tengku Baharudin Shah Tengku Mahmud JCA formed the majority judgment. Rahmah Bt Hussain FCJ was in the minority. The majority observed that this case was "different from any other case that we know of". They also commented that there seemed "to be so many unusual things that happened regarding the arrest and the confession" of Sukma.

Since 7 June 1999, when the sodomy trial began, many ordinary Malaysians voiced the opinion that the case was unusual and were disturbed by the decision to convict Anwar and Sukma.

Some of the disturbing features of the case are as follows:

Azizan's evidence

  1. In the sodomy trial, Azizan repeatedly contradicted himself. For example, in respect to the date of the alleged incident, the prosecution amended the charges twice in attempts to "fit" the facts to Azizan's testimony. The original charge had the date put down as "one night in the month of May 1994". It was then amended to "one night in the month of May 1992" and subsequently to "between the months of January and March 1993".

  2. Azizan further contradicted his statements. In the corruption trial, Azizan said that Anwar did not sodomise him after May 1992. In the sodomy trial, he backtracked his statement.

  3. Azizan did not lodge any police report of the alleged incident although he said that he had been sodomised some 10 to 15 times at various places. He never once complained about it until 1997. He did not resign from his job with Anwar subsequent to his assault. In fact, after he left his job, he went back to work for Anwar's wife.

  4. When Azizan saw Anwar on the date of the alleged incident at Tivoli Villa, he did not leave immediately or resist; rather, he entered the apartment.

  5. The trial judge at the sodomy trial observed that Azizan was very evasive and appeared not to answer simple questions put to him.

  6. ASP Zull Aznam, a police officer, testified that Azizan had told him that it was on the promise of the payment of money that he made those allegations against Anwar.

  7. Azizan was not sent for a medical examination to corroborate his allegations. There was no credible and independent medical evidence of Azizan being sodomised. It is explicit that medical evidence is crucial and essential as corroborative evidence in sexual offences.

Sukma's confession

  1. Sukma was abused, cruelly treated and tortured into making a confession to a Magistrate. He agreed to make a confession on the 12th day of his detention upon being told that he would be released after making a confession. He confessed to, among other things, committing acts of sodomy with Anwar and Azizan. This confession was accepted by the High Court and used as part of the grounds to convict both Anwar and Sukma. The Federal Court however found as a fact that the confession was not voluntarily given and was therefore inadmissible .

  2. Sukma was remanded for 14 days at a stretch by way of a Court order. It is not a common practice to grant such an order. Moreover, the order was not made by a Magistrate at the Magistrates' Court, as is usually the case. Sukma was brought before a particular officer at the High Court, one Tuan Mat Zaraai, who gave the order.

  3. Sukma was not accorded a lawyer of his choice. A lawyer by the name of Mohd Noor Don ("Don") was apparently appointed by the police (through SAC-1 Musa ("Musa"), the Chief Investigating Officer) for Sukma. Musa informed Sukma that if he used the lawyer picked by Musa, he would be charged for a less serious offence and sentenced to 3 months' imprisonment only, whereas if he appointed his own lawyer, he would be charged for a more serious offence.

  4. The lawyer appointed by Sukma's sister, Ganesan a/l Karupanan, attempted to meet Sukma during his detention on numerous occasions but was not allowed to do so.

  5. Don thereafter tendered Sukma's confession "in mitigation of sentence" in respect of a charge of gross indecency where he pleaded guilty. He was sentenced to 6 months' imprisonment on 19 September 1998. According to Sukma, his plea of guilty was not voluntary and was induced by the authorities.

Even leaving aside the substantive defences of alibi, political motivation, character assasination and conspiracy to fabricate evidence against Anwar and Sukma, any reasonable, apolitical observer of the sodomy trial would have concluded that there was reasonable doubt raised against Azizan's allegations. The unusual circumstances surrounding Sukma's earlier charge of gross indecency and his confession lends further suspicion to the authenticity of the allegations against Anwar and Sukma at the sodomy trial.

Anwar was a real threat to the establishment. This explains the improper motivation for the charges made against him. Ask any taxi-driver or man-on-the-street in Malaysia and few will deny that the charges were politically motivated. To lend a semblance of credibility, a stranger to politics had to be sacrified and Sukma the lamb.

The sodomy chronicles from the High Court to the Federal Court illustrate that the law and legal principles, however sound, can be politically manipulated.

The prosecutors are not free from blame either. Anwar's complaint of political persecution and conspiracy to frame him with trumped-up charges is to a large extent vindicated by the strong general statements of the Federal Court.

"The manner he conducted the proceedings, in particular the interrogation of the appellant and the speedy finding of guilt without even allowing the appellant to call any witness, gave the picture that he was behaving as though he was acting as counsel for the two prosecutors in the motion."

These statements have to date not been refuted or expunged from the records. The Federal Court went on to hold that the evidence filed by Anwar that the prosecutors had attempted to fabricate and obtain false evidence disclosed a prima facie case justifying the application to disqualify them. This case also illustrates how the High Court took it upon itself to shackle Anwar and his defence team from advancing the best possible defence available to Anwar.

The appearance of complicity between the judiciary, police, prosecutors and a lawyer (Don) shows how the legal process can be abused to produce unfair trials and convictions. It is precisely for this reason that the International Bar Association's Minimum Standards of Judicial Independence (1982) defines substantive independence of the judiciary. to mean that when discharging his/her judicial functions, a judge should be subject to nothing but the law and the commands of his/her conscience while discharging his/her judicial functions.

Prosecutors also have the vital duty to uphold the dignity of their office . They are not to initiate or continue prosecution when an impartial investigation shows the charge to be unfounded. They are to refuse to use evidence obtained through unlawful methods that constitute a grave violation of the suspect's human rights, especially methods involving torture or cruel, inhuman or degrading treatment or punishment. They should be able to take the necessary steps to ensure that those responsible for using such methods be brought to justice. Sukma's confession is a case in point.

Anwar and Sukma did not have a fair trial in accordance with international human rights standards. The standpoint of the accused is relevant in deciding this. The test is set out in the case of Incal v. Turkey [1998] ECHR 48 (9 June 1998):

"In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified."

The Federal Court's decision to acquit was correct. But it is arguable that the underlying motivation for the decision is purely "legal". The judiciary was sadly torn apart in 1988. Contrary to popular belief , the Federal Court's decision does not mark the rebirth or rejuvenation of the judiciary. The decision freeing Anwar was merely a decision that should have been given by the High Court some five years ago.

Anwar and Sukma are free at last. There is doubt however whether the institutions and other actors who played a vital part in the sodomy chronicles will ever be truly free of unfair politicisation.

 
 
CHRI Newsletter, Winter 2004


Editors: Vaishali Mishra & Clare Doube, CHRI;
Design: Print: Anshu Tejpal, Electronic: Jyoti Bhargava, CHRI; Web Developer: Swayam Mohanty, CHRI.
Acknowledgement: Many thanks to all contributors

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